Additional Amounts. All payments made under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) thereto.
Appears in 2 contracts
Sources: Indenture (Fresenius Medical Care AG & Co. KGaA), Indenture (Fresenius Medical Care AG & Co. KGaA)
Additional Amounts. All payments made under The payment of Capital Payments on the Class B Preferred Securities, and any amount payable upon redemption thereof or with respect to this Note under the Indenture or pursuant to any Note Guarantee must in liquidation, shall be made free and clear of and without any deduction or withholding or deduction for or on account of any present or future taxtaxes, dutyduties or governmental charges of any nature whatsoever imposed, levy, impost, assessment levied or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied collected by or on behalf of the United States or Germany (1or any jurisdiction from which payments are made) the United Statesor, Germany, Luxembourgduring any period in which any Substitute Obligations are outstanding, the United Kingdom jurisdiction of residence of any obligor on such Substitute Obligations (or any jurisdiction from which payments are made) (each a “Relevant Jurisdiction”) or by or on behalf of any political subdivision or governmental authority therein or thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a collectively, “Relevant Taxing JurisdictionWithholding Taxes”), collectively, “Taxes”, unless the Issuer, relevant Guarantor such deduction or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencylaw. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note GuaranteeIn such event, the Issuer or Company shall pay as additional Capital Payments, such Guarantor, as the case may be, will be required to pay such amount additional amounts (such amount the “Additional Amounts”) to the Class B Preferred Securityholders as may be necessary so in order that the net amount (including Additional Amounts) amounts received by each holder the Class B Preferred Securityholders and the Trust Preferred Securityholders after such deduction or withholding for or deduction (including any withholding or deduction on such Additional Amounts) will not be less than account of Withholding Taxes shall equal the amount such holder amounts that otherwise would have been received if had no such Taxes had not deduction or withholding been withheld or deducted; required, provided, however, that no such Additional Amounts will shall be payable in respect of the Class B Preferred Securities
(i) if and to the extent that the Company is unauthorized to pay because such payment would exceed the Distributable Profits of the Bank for the preceding fiscal year (after subtracting from such Distributable Profits the aggregate amount of the Capital Payments on the Class B Preferred Securities and any capital payments or dividends on Preferred Tier 1 Securities, if any, already paid on the basis of such Distributable Profits on or prior to the date on which such Additional Amounts shall be payable);
(ii) with respect to payments made to any holder to the extent such Withholding Taxes that are imposed payable by reason of a Holder or beneficial owner of Class B Preferred Securities (other than the Trust) having some connection with any Relevant Jurisdiction other than by reason only of the mere holding or beneficial ownership of Class B Preferred Securities;
(iii) with respect to any Withholding Taxes which are deducted or withheld pursuant to (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note European Council Directive 2003/48/EC or any Note Guaranteeother European Union Directive or Regulation implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income, or (ii) such holder any international treaty or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary understanding entered into for the Issuer, Guarantors or other applicable withholding agent purpose of facilitating cooperation in the reporting and collection of savings income and to make or obtain authorization to make payments without such Taxes which (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (ix) any Tax imposed on interest by the United States States, and (y) the European Union or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that Germany is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986party, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States provision of law implementing, or any political subdivision complying with, or governmental authority thereof introduced to conform with, such Directive, Regulation, treaty or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or understanding; or
(iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by the extent such deduction or withholding can be avoided or reduced if the Holder or beneficial owner of Class B Preferred Securities makes a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer declaration of non-residence or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld other similar claim for exemption to the relevant tax authority as and when required in accordance or complies with applicable law. The Issuer any reasonable certification, documentation, information or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment other reporting requirement imposed by the Issuer relevant tax authority, provided, however, that the exclusion set forth in this clause (iv) shall not apply if the certification, information, documentation or such Guarantor other reporting requirement would be materially more onerous (as applicable) in form, procedure or substance of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies information required to be disclosed), to the Trustee. Wherever in the Indenture, this Note Holder or any Note Guarantee there are mentioned, in any context, (1) the payment beneficial owner of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest Class B Preferred Securities than comparable information or other amounts on this Note is to be made reporting requirements imposed under U.S. tax law, regulation and administrative practice (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafteras IRS Forms W-8 and W-9), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) thereto.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Deutsche Bank Capital Funding LLC IX), Limited Liability Company Agreement (Deutsche Bank Aktiengesellschaft)
Additional Amounts. All payments made by the Issuer in respect of the notes or any Guarantor under or with respect to this a Note under Guarantee, as the Indenture or pursuant to any Note Guarantee must case may be, will be made free and clear of of, and without withholding or deduction for or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge (of whatever nature, including penalties, interest and other liabilities related thereto) imposed , imposed, levied, collected, withheld or levied assessed by or on behalf of any taxing jurisdiction in which the (1) the United States, Germany, Luxembourg, the United Kingdom Issuer or any political subdivision Guarantor (including successor) is then incorporated or governmental authority thereof or therein having the power to taxresident for tax purposes, (2) any taxing jurisdiction from or through which any payment on in respect of the Notes or any under a Note Guarantee is made, made or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a hereafter “Relevant Taxing JurisdictionTaxes”), collectively, “Taxes”, unless the Issuer, relevant Guarantor such withholding or other applicable withholding agent deduction is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencylaw. If the Issuer, a Guarantor any such withholding or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor deduction is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guaranteeby law, the Issuer or such the relevant Guarantor, as the case may be, will be required to pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so that will result in receipt by the net amount (including Additional Amounts) holders of Notes of such amounts as would have been received by each holder after them had no such withholding or deduction (including any deduction or withholding or deduction on such in respect of payments of Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; providedrequired, however, except that no Additional Amounts will be payable with respect to payments a payment made to a Holder or Beneficial Owner of Notes for or in respect of:
(a) Taxes imposed as a result of any of the following circumstances:
(1) the existence of any present or former connection between such Holder or Beneficial Owner of Notes and the jurisdiction imposing such tax (including without limitation, by virtue of the holder or Beneficial Owner carrying on a business or having a place of business in such jurisdiction), other than merely holding or ownership of, or receiving payments under such Note or Note Guarantee or exercising or enforcing any rights thereunder;
(2) if the Notes are held in definitive registered form (“Definitive Registered Notes”) and the presentation of Definitive Registered Notes (where presentation is required) for payment had occurred after 30 days after the date of such payment was due and payable or was provided for, whichever is later, except for Additional Amounts with respect to taxes that would have been imposed had the extent Holder presented the Note for payment within such Taxes are 30-day period;
(3) the Holder or Beneficial Owner of a Note not dealing at arm’s length, within the meaning of the Income Tax Act (Canada), with the Issuer or a relevant Guarantor at the relevant time;
(b) any estate, inheritance, gift, sales, transfer, personal property or similar tax; or
(c) any Taxes, deduction or withholding imposed by reason of (i) such holder the failure of the Holder or beneficial owner being considered Beneficial Owner of a Note to be or to have been connected comply with a Relevant Taxing Jurisdictioncertification, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors information or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee reporting requirements after receiving a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of reasonable written advance request from the Issuer or any a relevant Guarantor entitled to voteso comply, (ii) any Tax if such compliance is required or imposed on interest by the United States a statute, treaty or any political subdivision regulation or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) administrative practice of the Internal Revenue Code taxing jurisdiction as a precondition to exemption from or reduction in all or part of 1986such Taxes, as amended (the “Code”) with respect deduction or withholding, in each case except where such Holder or Beneficial Owner is not legally able to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodianso comply. The Issuer or any relevant Guarantor will (as applicable1) required to withhold any Taxes will make such withholding or deduction and (2) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any relevant Guarantor (as applicable) will use commercially make reasonable efforts to obtain certified copies of tax receipts evidencing the payment by of any taxes so deducted or withheld from the relevant taxing authority. The Issuer or such Guarantor (as applicable) will furnish to the Holders of the Notes, within 60 days after the date the payment of any Taxes so deducted or withheld from is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of such payments. In addition, the Issuer and the Guarantors will indemnify and hold harmless each Relevant Taxing Jurisdiction imposing Holder and, upon written request of any Holder (subject to the exclusions set forth in clauses (a) through (c) of this Section 4.21 and provided that reasonable supporting documentation is provided), reimburse such holder for the amount of (i) any such Taxes levied or imposed as a result of payments made under or with respect to the Notes (including payments under this clause (i)); and (ii) any Taxes so levied or imposed with respect to any reimbursement under the foregoing clause (i), so that the net amount received by such holder after such reimbursement will not be less than the net amount such Holder would have received if Taxes on such reimbursement had not been levied or imposed. Any payment pursuant to this paragraph will be an Additional Amount. At least 30 days prior to each date on which any payment under or with respect to the Notes is due and payable, if the Issuer or relevant Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer or relevant Guarantor will deliver to the trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and will provide set forth such certified copies other information necessary to enable the paying agent to pay such Additional Amounts to the TrusteeHolders on the payment date. Wherever Whenever in the Indenture, this Note or any Note Guarantee Indenture there are is mentioned, in any context, (1) the payment of principalamounts based upon the principal of, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Notepremium, (3) Special Interest, if any, interest or (4) any other amount payable on under or with respect to this any Note or any Note Guarantee, such reference shall mention will be deemed to include mention of the payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principalIn addition, premium, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a relevant Guarantor will be obligated to pay Additional Amounts any stamp, issue, registration, documentary, value added or other similar taxes and other duties (including interest and penalties) (“Other Taxes”) with respect to enforcement of or payments in respect of a Note Guarantee, in respect of the creation, issue, offering, registration, execution or enforcement of the Notes, or any such payment, documentation with respect thereto and the Issuer and each Guarantor will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to indemnify the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent for any Other Taxes paid by such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon requestHolders. The foregoing obligations in this Paragraph 2 will shall survive any termination, defeasance or satisfaction and discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) theretoNotes.
Appears in 2 contracts
Sources: Indenture (AbitibiBowater Inc.), Indenture (AbitibiBowater Inc.)
Additional Amounts. All payments (a) Payments made by the Issuers under or with respect to this Note under the Indenture Notes or pursuant any of the Subsidiary Guarantors with respect to any Note Subsidiary Guarantee must shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties“Taxes”) unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, interest and other liabilities related thereto) or on account of, any Taxes imposed or levied by or on behalf of the (1) the United Statesany jurisdiction in which any Issuer or any Subsidiary Guarantor is at any relevant time organized, Germany, Luxembourg, the United Kingdom engaged in business for tax purposes or resident for tax purposes or any political subdivision or governmental authority thereof or therein having the power to tax, or (2) any jurisdiction from or through which payment is made by or on the Notes behalf of any Issuer or any Note Guarantee is made, Subsidiary Guarantor (including the jurisdiction of any paying agent) or any political subdivision or governmental authority thereof or therein having the power to tax or (3each, a “Tax Jurisdiction”) will at any other jurisdiction in which the payor is organized or otherwise considered time be required to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes made from any payment payments made by any Issuer under or with respect to the Notes or any Note of the Subsidiary Guarantors with respect to any Subsidiary Guarantee, the Company, the Co-Issuer or such the relevant Subsidiary Guarantor, as the case may beapplicable, will be pay to each Holder of Notes that are outstanding on the date of the required to pay payment, such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so that the net amount received by the applicable beneficial owner (including the Additional Amounts) received by each holder after such withholding or deduction (including any such withholding or deduction on such in respect of Additional Amounts) will not be less than equal the amount such holder beneficial owner would have received if such Taxes had not been withheld or deducted; provided, however, provided that no Additional Amounts will be payable with respect to payments made a payment to any holder to a Holder or beneficial owner of the extent Notes in respect of the following Taxes (“Excluded Taxes”):
(i) Canadian Taxes imposed because the Company does not deal at arm’s-length (within the meaning of the Income Tax Act (Canada)) with such Holder or beneficial owner at the time of making such payment,
(ii) Taxes are imposed by reason of (i) such holder Holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other relevant Tax Jurisdiction or any province or territory thereof otherwise than by the acquisition, ownership, mere holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee Notes or the receipt of payments in respect of this of, or enforcement of, such Note or a Subsidiary Guarantee,
(iii) Taxes payable as a result of such Holder’s or beneficial owner’s failure to comply with a timely request of the Company to comply with any Note Guaranteecertification, identification, documentation or other reporting requirements if compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to exemption from, or (ii) a reduction in the rate of deduction or withholding of, Taxes imposed by a relevant Tax Jurisdiction to which such holder Holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuerentitled,
(iv) estate, Guarantors inheritance, gift, sales, transfer or other applicable withholding agent to make or obtain authorization to make payments without such similar Taxes,
(v) Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note which the payment could have been made without deduction or any Note Guarantee a completewithholding for such Taxes if such Holder or beneficial owner had presented such Notes for payment within 30 days after the date on which such payment on such Notes became due and payable or the date on which payment thereof is duly provided for, correct and executed IRS Form W-8 whichever is later (except to the extent that such Holder or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no beneficial owner would have been entitled to Additional Amounts shall had such Notes been presented on the last day of such 30-day period),
(vi) Canadian Taxes imposed because such payment is deemed (under subsection 214(16) of the Income Tax Act (Canada)) to be payable with respect to (i) any Tax imposed on interest a dividend paid by the United States Company to such Holder or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding because such Holder or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person “specified shareholder” (within the meaning of Section 864(d)(4subsection 18(5) of the Internal Revenue Code of 1986, as amended Income Tax Act (the “Code”) with respect to the Issuer or any Guarantor, Canada)),
(iiivii) any Tax U.S. federal withholding Taxes imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of such payment being treated as allocable to the Co-Issuer for U.S. federal income tax purposes;
(viii) any beneficial owner being a bank extending credit withholding or deduction imposed pursuant to a loan current Sections 1471 through 1474 of the Code or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to current Section 1471(b)(1) of the Code or any amended or successor provision that is substantively comparable and not materially more onerous to comply with, and any fiscal or regulatory legislation, rules or official administrative practices adopted pursuant to any intergovernmental agreement, treaty or convention among governmental authorities and implementing such Sections of the Code, or
(ix) any combination of the Taxes described in the ordinary course of its trade or business or above clauses in this proviso.
(ivb) any United States federal tax imposed pursuant to FATCAIf it is the applicable withholding agent, (v) with respect to German tax residents any Tax withheld by a German custodianthe Company, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Co-Issuer or any the relevant Subsidiary Guarantor shall also:
(as applicablei) required to withhold any Taxes will make such withholding or deduction and deduction, and
(ii) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. .
(c) The Company, the Co-Issuer or the relevant Subsidiary Guarantor will furnish, within 30 days after the date on which the payment of any Guarantor (as applicable) will use commercially reasonable efforts Taxes is due pursuant to obtain certified applicable law, to the Trustee on behalf of the Holders of the applicable Notes that are outstanding on the date of the required payment, copies of tax receipts receipts, if any (or other documentation), evidencing the payment payments of Taxes made by the Company, the Co-Issuer or a Subsidiary Guarantor, as the case may be, on behalf of the Holders or beneficial owners of the applicable Notes. The Issuers and the Subsidiary Guarantors will indemnify and hold harmless each Holder (for itself and its applicable beneficial owners) and upon written request reimburse each such Guarantor Holder for the amount of:
(as applicablei) of any Taxes (other than Excluded Taxes) so deducted levied or withheld from each Relevant Taxing imposed by a relevant Tax Jurisdiction imposing and paid by such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note Holder or any Note Guarantee there are mentioned, in any context, (1) the payment beneficial owners as a result of principal, (2) purchase prices in connection with a purchase of Notes payments made under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note the Notes or any Note Subsidiary Guarantee,
(ii) any liability (including penalties, interest and expense) arising from such reference shall be deemed Taxes described in clause (i) above or with respect thereto, and
(iii) any Taxes (other than Excluded Taxes) imposed by a relevant Tax Jurisdiction with respect to include payment of Additional Amounts as described any reimbursement under this heading clause (i) or (ii) above. In addition to the extent thatforegoing, in such contextthe Issuers and the Subsidiary Guarantors will also pay and indemnify each Holder (for itself and its applicable beneficial owners) for any present or future stamp, Additional Amounts areissue, were registration, transfer, court or would be payable in documentary taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and any other liabilities related thereto) which are levied by any relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, this Indenture, any Subsidiary Guarantee or any other document referred to therein, or the receipt of any payments with respect thereof. thereto, or enforcement of, any of the Notes or any Subsidiary Guarantee.
(d) At least 30 days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on this Note with respect to the Notes is to be made due and payable (unless an such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Company, the Co- Issuer or a Subsidiary Guarantor will be becomes obligated to pay Additional Amounts with respect to any such payment, the Company, the Co-Issuer will promptly furnish or the relevant Subsidiary Guarantor, as applicable, shall deliver to the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating the fact that such Additional Amounts will shall be payable payable, and the amounts so payable, payable and will shall set forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders of the Notes on the payment date. The Issuer or a Guarantor Whenever in this Indenture there is mentioned, in any context:
(as applicablei) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of principal (and premium, if any),
(ii) purchase prices in connection with a repurchase of Notes,
(iii) interest, or
(iv) any other amount payable on or with respect to any of the Notes or any Subsidiary Guarantee, such Additional Amounts. Copies of such documentation mention shall be made available deemed to include mention of the payment of Additional Amounts provided for in this Section 4.19 to the holders upon request. extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The foregoing obligations in this Paragraph 2 Section 4.19 will survive any termination, defeasance or discharge of the this Indenture. References , any transfer by a Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in this Paragraph 2 which any successor Person to the Company, the Co-Issuer or any Subsidiary Guarantor shall apply to is organized, engaged in business for tax purposes or resident for tax purposes or any successor(sjurisdiction from or through which such Person makes any payment on the Notes (or any Subsidiary Guarantee) theretoor any political subdivision thereof or therein.
Appears in 2 contracts
Additional Amounts. All (a) The Issuer, the Company and any Subsidiary Guarantor are required to make all payments made under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must be made on the Notes free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or on behalf of the (1) government of the United States, Germany, Luxembourgcountry in which the Company, the United Kingdom Issuer or Subsidiary Guarantor and any successor thereof is organized or incorporated or any political subdivision or governmental any authority or agency therein or thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor Company, the Issuer or any Subsidiary Guarantor is organized or otherwise considered to be a resident or engaged in business for tax purposespurposes or the jurisdiction of any Paying Agent (each, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the IssuerCompany, relevant the Issuer or a Subsidiary Guarantor or other applicable withholding agent Paying Agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. thereof.
(b) If the IssuerCompany, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or any Subsidiary Guarantor, or a Guarantor Paying Agent is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note GuaranteeNotes, the Company, the Issuer or such Guarantor, as the case may be, any Subsidiary Guarantor will be required to pay such amount additional amounts (such amount the “Additional Amounts”) with respect to the Notes as may be necessary so that the net amount received by any Holder or beneficial owner (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder Holder or beneficial owner would have received if such Taxes had not been withheld or deducted; provided, however, that no the foregoing obligation to pay Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of does not apply to:
(i) such any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant Holder or beneficial owner and the Relevant Taxing Jurisdiction (including a connection between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant holder or beneficial owner, if the relevant holder or beneficial owner is an estate, nominee, trust, partnership or corporation, and the Relevant Taxing Jurisdiction) including, without limiting the generality of the foregoing, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, partner, member, shareholder, or possessor) of the Notes being considered or having been a citizen, resident, or national thereof or being or having been present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(ii) any estate, inheritance, gift, sales, transfer or personal property tax or similar Taxes;
(iii) any withholding or deduction in respect of the Notes (a) presented for payment by or on behalf of a Holder or beneficial owner who would have been able to be avoid such withholding or deduction by presenting the relevant note to any other paying agent, or (b) where the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the notes for payment within 30 days after the date on which such payment on the notes became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the holder or beneficial owner would have been entitled to Additional Amounts had the notes been presented on the last day of such 30-day period);
(iv) any Taxes imposed with respect to any payment of principal (or premium, if any) or interest on the Notes by the Company, the Issuer or any Subsidiary Guarantor to any Holder or beneficial owner who is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder or beneficial owner of such Notes;
(v) any Taxes that are payable other than by deduction or withholding from payments made under or with respect to the Notes;
(vi) any Taxes that would not have been imposed but for the failure of the Holder and/or beneficial owner (a) to comply with the Company’s, the Issuer’s, the Subsidiary Guarantor’s or the Paying Agent’s request in writing at least 30 days before any withholding for such Taxes to the Holder to provide certification, documentation, information or other evidence concerning the nationality, residence, entitlement to treaty benefits, identity, direct or indirect ownership of or investment in the Notes, or connection with the Relevant Taxing Jurisdiction of the Holder and/or beneficial owner of such Notes, or (b) to make any valid or timely declaration or similar claim or satisfy any other reporting requirement or to have been connected with a provide any information relating to such matters, whether required or imposed by statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction, other than as a precondition to exemption from, or reduction in the rate of withholding or deduction of, Taxes imposed by the acquisition, ownership, holding or disposition of this Note, Relevant Taxing Jurisdiction;
(vii) with respect to any payment made by the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note Company or any Note GuaranteeSubsidiary Guarantor that is resident in Canada, or is a partnership any partner of which is resident in Canada, in each case, for purposes of Part XIII of the Income Tax Act (ii) such holder Canada), any Taxes that are required to be deducted or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of withheld from any payment on under or in respect of this Note the Notes as a consequence of the Holder or beneficial owner of Notes or the recipient of the interest payable on the Notes not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with the Company or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable Subsidiary Guarantor at the time of making any such payment;
(viii) with respect to (i) any Tax imposed on interest payment made by the United States Company or any political subdivision Subsidiary Guarantor that is resident in Canada, or governmental authority thereof is a partnership any partner of which is resident in Canada, in each case, for purposes of Part XIII of the Income Tax Act (Canada), any Taxes that are required to be deducted or therein by reason withheld from any payment under or in respect of any the Notes as a consequence of the Holder or beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power Notes being at any time a ‘‘specified non-resident shareholder’’ (within the meaning of all classes subsection 18(5) of stock the Income Tax Act (Canada)) of the Company, the Issuer or any Subsidiary Guarantor entitled to vote, or at any time not dealing at arm’s length (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4the Income Tax Act (Canada)) with a “specified shareholder” (within the meaning of subsection 18(5) of the Internal Revenue Code Income Tax Act (Canada)) of 1986the Company, as amended (the “Code”) with respect to the Issuer or any Guarantor, Subsidiary Guarantor or as a consequence of the payment being deemed to be a dividend under the Income Tax Act (iiiCanada);
(ix) any Taxes payable under section 1471 through 1474 of the Code (or any successor or amended versions thereof), any regulations or other official guidance thereunder, or any agreement (including any intergovernmental agreement or any law implementing such governmental agreement) entered into in connection therewith (“FATCA”);
(x) any Taxes or penalties arising from the Holder’s or beneficial owner’s failure to comply with the Holder’s or beneficial owner’s obligations imposed under Part XVIII of the Income Tax imposed on interest by Act (Canada), the Canada-United States Enhanced Tax Information Exchange Agreement Implementation Act (Canada) or the similar provisions of legislation of any other jurisdiction that has entered into an agreement with the United States of America to provide for the implementation of FATCA based reporting; or
(xi) any combination of, or any political subdivision or governmental authority thereof or therein by reason Taxes arising from a combination of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCAfactors described in, (vi) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicablex) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor above.
(as applicablec) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 calendar days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on this Note with respect to the Notes is to be made due and payable (unless an such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer Issuer, the Company or a any Subsidiary Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish deliver to the U.S. Trustee and paying agent for the Paying Agent, if other than the Trustee, with affected Notes an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable, payable and will set forth such other information necessary to enable the U.S. Trustee or paying agent, as the Paying Agent case may be, to pay such Additional Amounts to the holders Holders and beneficial owners of such Notes on the payment date. Each such Officers’ Certificate shall be relied upon until receipt of a further Officers’ Certificate addressing such matters.
(d) The Issuer, the Company or the applicable Subsidiary Guarantor will also (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Issuer or a Guarantor (as applicable) will pay provide the U.S. Trustee with official receipts or, if notwithstanding the efforts of the Issuer official receipts are not obtainable, other documentation reasonably satisfactory to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the U.S. Trustee, shall promptly provide the Trustee with documentation evidencing the payment of any Tax so deducted or withheld for each Relevant Taxing Jurisdiction imposing such Additional AmountsTaxes. Copies The Issuer will attach to each official receipt or other documentation a certificate stating (x) that the amount of such Tax evidenced by the official receipt or other documentation shall be was paid in connection with payments in respect of the principal amount of such Notes then outstanding and (y) the amount of such Tax paid per $1,000 of principal amount of such Notes.
(e) Whenever reference is made available in this Indenture, in any context, to (i) the payment of principal, (ii) redemption prices or purchase prices in connection with a redemption or purchase of Notes, (iii) interest or (iv) any other amount payable on or with respect to the holders upon request. Notes, such reference will be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are or would be payable in respect thereof.
(f) The foregoing Issuer will pay any present or future stamp, court, documentary or other similar taxes, charges or levies that arise in any jurisdiction from the execution, delivery or registration of, or enforcement of rights under, this Indenture or any related document.
(g) The obligations in described under this Paragraph 2 Section 2.13 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor Person to the Indenture. References Company or any Subsidiary Guarantor is organized or any political subdivision or taxing authority or agency thereof or therein.
(h) The Issuer, the Company and the Subsidiary Guarantors shall indemnify and hold harmless the Trustees for the amount of any Taxes in this Paragraph 2 to respect of which the Company, the Issuer or any Guarantor shall apply Subsidiary Guarantor, is required to pay Additional Amounts pursuant to Section 2.13(b) that are levied or imposed and paid by the Trustees as a result of payments made under or with respect to the Notes, the Company Guarantee or any successor(s) theretoSubsidiary Guarantee, including any reimbursements under this clause 2.13(h).
Appears in 2 contracts
Sources: Indenture (Open Text Corp), Indenture (Open Text Corp)
Additional Amounts. All payments made under The payment of Capital Payments on the Class B Preferred Securities, and any amount payable upon redemption thereof or with respect to this Note under the Indenture or pursuant to any Note Guarantee must in liquidation, shall be made free and clear of and without any deduction or withholding or deduction for or on account of any present or future taxtaxes, dutyduties or governmental charges of any nature whatsoever imposed, levy, impost, assessment levied or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied collected by or on behalf of the United States or Germany (1or any jurisdiction from which payments are made) the United Statesor, Germany, Luxembourgduring any period in which any Substitute Obligations are outstanding, the United Kingdom jurisdiction of residence of any obligor on such Substitute Obligations (or any jurisdiction from which payments are made) (each a “Relevant Jurisdiction”) or by or on behalf of any political subdivision or governmental authority therein or thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a collectively, “Relevant Taxing JurisdictionWithholding Taxes”), collectively, “Taxes”, unless the Issuer, relevant Guarantor such deduction or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencylaw. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note GuaranteeIn such event, the Issuer Company shall pay as additional Capital Payments (or such GuarantorArrears of Payments, as the case may be), will be required to pay such amount additional amounts (such amount the “Additional Amounts”) to the Class B Preferred Securityholders as may be necessary so in order that the net amount (including Additional Amounts) amounts received by each holder the Class B Preferred Securityholders and the Trust Preferred Securityholders after such deduction or withholding for or deduction (including any withholding or deduction on such Additional Amounts) will not be less than account of Withholding Taxes shall equal the amount such holder amounts that otherwise would have been received if had no such Taxes had not deduction or withholding been withheld or deducted; required, provided, however, that no such Additional Amounts shall be payable in respect of the Class B Preferred Securities
(i) in respect of each portion of the Upper Tier 2 Percentage of the Class B Preferred Securities for Class B Payment Periods prior to the Class B Payment Period during which the respective Tier 1 Qualification Election, if any, occurred, with respect to such portions, if and to the extent that the Company is unable to pay because such payment would exceed the Distributable Profits of the Bank for the fiscal year in respect of which the relevant Capital Payments are payable (after subtracting from such Distributable Profits the amount of the Capital Payments on the Upper Tier 2 Percentage of the Class B Preferred Securities and any payments on Parity Capital Securities, the Tier 1 Percentage, if any, of the Class B Preferred Securities and Preferred Tier 1 Capital Securities, if any, already paid on the basis of such Distributable Profits on or prior to the date on which such Additional Amounts will be payable payable), in which case such Additional Amounts shall be deferred and will thereupon constitute Arrears of Payments;
(ii) in respect of each portion of the Tier 1 Percentage of the Class B Preferred Securities for Class B Payment Periods from and including the Payment Period during which the respective Tier 1 Qualification Election if any, occurred, with respect to payments made to any holder such portion, if and to the extent that the Company is unauthorized to pay because of insufficient Distributable Profits of the Bank for the preceding fiscal year (after subtracting from such Distributable Profits the amounts of Capital Payments on the Tier 1 Percentage of the Class B Preferred Securities and the dividends and other distributions or payments on the Preferred Tier 1 Securities, if any, already paid on the basis of such Distributable Profits on or prior to the date on which such Additional Amounts will be payable);
(iii) with respect to any Withholding Taxes that are imposed payable by reason of a Holder or beneficial owner of the Class B Preferred Securities (other than the Trust) having some connection with the Relevant Jurisdiction other than by reason only of the mere holding or beneficial ownership of Class B Preferred Securities;
(iv) with respect to any Withholding Taxes which are deducted or withheld pursuant to (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note European Council Directive 2003/48/EC or any Note Guaranteeother European Union Directive or Regulation implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income, or (ii) such holder any international treaty or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary understanding entered into for the Issuer, Guarantors or other applicable withholding agent purpose of facilitating cooperation in the reporting and collection of savings income and to make or obtain authorization to make payments without such Taxes which (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (ix) any Tax imposed on interest by the United States States, and (y) the European Union or any political subdivision Germany are parties, or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States provision of law implementing, or any political subdivision complying with, or governmental authority thereof introduced to conform with, such Directive, Regulation, treaty or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, understanding; or
(v) with respect to German tax residents any Tax withheld by the extent such deduction or withholding can be avoided or reduced if the Holder or beneficial owner of Class B Preferred Securities makes a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer declaration of non-residence or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld other similar claim for exemption to the relevant tax authority as and when required in accordance or complies with applicable law. The Issuer any reasonable certification, documentation, information or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment other reporting requirement imposed by the Issuer relevant tax authority, provided, however, that this exclusion shall not apply if the certification, information, documentation or such Guarantor other reporting requirement would be materially more onerous (as applicablein form, procedure or substance of information required to be disclosed) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note Holder or any Note Guarantee there are mentioned, in any context, (1) the payment beneficial owner of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest Class B Preferred Securities than comparable information or other amounts on this Note is to be made reporting requirements imposed under U.S. tax law, regulation and administrative practice (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafteras IRS Forms W-8 and W-9), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) thereto.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Deutsche Bank Contingent Capital LLC V), Limited Liability Company Agreement (Deutsche Bank Contingent Capital LLC V)
Additional Amounts. (a) All payments made that the Issuers make under or with respect to this Note the Notes or that the Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments by or on behalf of the any jurisdiction (1) other than the United States, Germanyany state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, Luxembourgresident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the United Kingdom Paying Agent) makes any payment on the Notes or by or within any department, political subdivision or governmental authority thereof of or therein in any of the foregoing having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant such Issuer or Guarantor or other applicable withholding agent agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the an Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note Guarantee, the such Issuer or such Guarantor, as the case may be, will be required to shall pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder beneficial owner of the Notes after such withholding or deduction (including any withholding or deduction on such in respect of any Additional Amounts) will not be less than the amount such holder the beneficial owner would have received if such Taxes had not been withheld or deducted; provided.
(b) None of the Issuers or Guarantors shall, however, that no pay Additional Amounts will be payable with in respect to payments made to or on account of:
(i) any holder Taxes, to the extent such Taxes are imposed or levied by a Relevant Taxing Jurisdiction by reason of (i) such holder the Holder’s or beneficial owner being considered to be owner’s present or to have been connected former connection with a such Relevant Taxing Jurisdiction, Jurisdiction (other than by the acquisitionmere receipt, ownership, holding or disposition of this Notethe Notes, or by reason of the receipt of any payments in respect of any Notes or any Guarantee, or the exercise or enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note Notes or any Note Guarantee, or );
(ii) any Taxes to the extent such Taxes are imposed or withheld by reason of the failure of the Holder or beneficial owner of the Notes, following the Issuers’ written request addressed to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements (to the extent such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for do so), whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the Issuerrate of deduction or withholding of, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior to a certification that the receipt of any payment on Holder or beneficial owner is not resident in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another the Relevant Taxing Jurisdiction). Further;
(iii) any estate, no Additional Amounts shall be inheritance, gift, sales, transfer, personal property or similar Taxes;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes or any Guarantee;
(iv) any Tax imposed on interest or with respect to any payment by any of the United States Issuers or any political subdivision Guarantors to the Holder if such Holder is a fiduciary or governmental authority thereof partnership or therein by reason of any Person other than the sole beneficial owner holding or owning, actually or constructively, 10% or more of such payment to the total combined voting power extent that such Taxes would not have been imposed on such payment had such beneficial owner been the holder of all classes of stock of the Issuer or any Guarantor entitled to vote, such Note;
(iivi) any Tax that is imposed on interest or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the United States relevant Notes to another paying agent in a member state of the European Union;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period);
(viii) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the European Council Directive 2003/48/EC, as amended or supplemented from time to time, including through European Council Directive 2014/48/EC or any political subdivision other Directive implementing the conclusions of the ECOFIN Council meetings of November 26 and 27, 2000 on the taxation of savings income or governmental authority any law implementing or complying with, or introduced in order to conform to, any such Directive;
(ix) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 as of the Issue Date (or therein by reason of any beneficial owner being a controlled foreign corporation amended or successor version that is a related person within the meaning of substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 864(d)(41471(b)(1) of the Internal Revenue Code of 1986, 1986 as amended of the Issue Date (the “Code”) with respect to the Issuer or any Guarantoramended or successor version described above), and including (iiifor the avoidance of doubt) any Tax imposed on interest by intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or foregoing; or
(ivx) any United States federal tax imposed pursuant to FATCAcombination of the foregoing.
(c) The Issuers and the Guarantors, if the applicable withholding agent, shall (vi) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor .
(as applicabled) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 calendar days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on this Note with respect to the Notes or any Guarantee is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer Issuers or a any Guarantor will shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or any such paymentGuarantee is due and payable, in which case it will be promptly thereafter), the Issuer will promptly furnish Issuers shall deliver to the Trustee and Trustee, with a copy to the Paying Agent, if other than the Trustee, with an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set setting forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including, without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (i) the execution, issue, delivery or registration of the Notes or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, the Notes or any Guarantee. Upon written request, any of the Issuers or a Guarantor (as applicable) will pay furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or Guarantor (as the Paying Agent case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02, in such Additional Amounts andform as provided in the normal course by the taxing authority imposing such Taxes. If, if paid notwithstanding the efforts of such Issuer or Guarantor to a Paying Agent obtain such receipts, the same are not obtainable, such Issuer or Guarantor will provide the Trustee or such Holder with other than evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, shall promptly the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee with documentation evidencing such information as may be reasonably available to such Issuer and the Guarantors (and not otherwise in the possession of the Trustee) to enable determination of the amount of any withholding Taxes attributable to any particular Holder(s).
(e) Whenever this Indenture or the Notes refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note (including payments thereof made pursuant to a Guarantee), such reference includes the payment of Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 , if applicable.
(f) This Section 4.12 will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction (other than the Indenture. References United States, any state thereof or the District of Columbia) in this Paragraph 2 which any successor Person to any of the Issuer Issuers or Guarantors is organized, resident or doing business for tax purposes or any Guarantor shall apply jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on the Notes (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to any successor(s) theretotax.
Appears in 2 contracts
Sources: Senior Indenture (Ardagh Finance Holdings S.A.), Secured Indenture (Ardagh Finance Holdings S.A.)
Additional Amounts. All payments made under If the Company (or with respect to this Note under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future taxa Guarantor, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related theretoif any) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law to deduct or withhold taxes imposed by the interpretation Bermuda or administration thereof by the relevant government authority or agency. If the Issueranother Relevant Tax Jurisdiction on payments to Holders, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is it will pay to any Holder so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the “Additional Amounts”) as entitled all additional amounts that may be necessary so that the net every Net Payment of interest, principal, premium or other amount (including Additional Amounts) received by each holder after such withholding the beneficial owner on that Note or deduction (including any withholding or deduction on such Additional Amounts) the guarantee will not be less than the amount such holder provided for in that Note or the Note Guarantee.
(a) The Company (and Guarantors, if any) will also indemnify and reimburse Holders for:
(1) Taxes (including any interest, penalties and related expenses) imposed on the Holders (or if a Holder is not the beneficial owner, the beneficial owner) by a Relevant Tax Jurisdiction if and to the same extent that a Holder would have received been entitled to receive additional amounts if such Taxes the Company (or a Guarantor) or other applicable withholding agent had been required to deduct or withhold those taxes from payments on the Notes or the Note Guarantees; and
(2) Stamp, court, documentary or similar taxes or charges (including any interest, penalties and related expenses) imposed by a Relevant Tax Jurisdiction in connection with the execution, delivery, enforcement or registration of the Notes or the Note Guarantees or other related documents and obligations.
(b) The Company (or a Guarantor) will not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made pay additional amounts to any Holder for or on account of any of the following:
(1) Any tax, assessment or other governmental charge imposed solely because at any time there is or was a connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of or possessor of power over the relevant holder to if the extent such Taxes are imposed by reason of holder is an estate, nominee, trust, partnership, limited liability company, or corporation) and the Relevant Tax Jurisdiction imposing the tax (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the mere receipt of a payment or the acquisition, ownership, disposition or holding of, or disposition of this Note, the enforcement of rights under this under, a Note or under the Note Guarantees);
(2) Any estate, inheritance, gift or any similar tax, assessment or other governmental charge;
(3) Any tax, assessment or other governmental charge imposed solely because such Holder (or if such Holder is not the beneficial owner, the beneficial owner) fails to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with the taxing jurisdiction of such Holder or any beneficial owner of the Note Guarantee or the receipt of payments in respect of this Note Guarantees, if compliance is required by law or any Note Guaranteeby an applicable income tax treaty to which the jurisdiction imposing the tax is a party, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible as a precondition to complete and are necessary for an exemption from the Issuertax, Guarantors assessment or other applicable withholding agent to make or obtain authorization to make payments without governmental charge for which such Taxes Holder is eligible and the Company (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form Guarantor) has given the Holders at least 60 days’ notice that Holders will be required by another Relevant Taxing Jurisdiction). Furtherto provide such information and identification;
(4) Any tax, no Additional Amounts shall be payable assessment or other governmental charge with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any a Note Guarantee there are mentioned, in any context, (1) the presented for payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least more than 30 days prior to each after the date on which payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that such Holder of principal, premium, if any, interest or other the Note would have been entitled to additional amounts on this presenting the Note for payment on any date during the 30-day period; and
(5) Any withholding or deduction imposed on a payment to an individual that is required to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts pursuant to the holders European Union Directive on the payment date. The Issuer or a Guarantor (as applicable) will pay to taxation of savings income, which was adopted by the Trustee or the Paying Agent such Additional Amounts andECOFIN Council on June 3, if paid to a Paying Agent other than the Trustee2003, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply law implementing or complying with, or introduced in order to any successor(s) theretoconform to, such Directive.
Appears in 2 contracts
Sources: Indenture (Aircastle LTD), Indenture (Aircastle LTD)
Additional Amounts. (a) All payments made that the Issuers make under or with respect to this Note the Securities or that the Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guaranties shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes Securities or the relevant Guaranty is made on behalf of the Issuers or any Note Guarantee is madeGuarantor, or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax tax, or (3) any other jurisdiction in which the payor Issuers or any Guarantor is organized or otherwise considered to be a resident or engaged in business for tax purposesresident, or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax (each of clauses (1), (2) and (3), a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the IssuerIssuers or such Guarantor, relevant Guarantor or other applicable withholding agent as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer Issuers or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note GuaranteeSecurities, the Issuer Issuers or such the Guarantor, as the case may be, will be required shall, subject to the exceptions set forth in Section 2.19(b), pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder Holder of the Securities after such withholding or deduction (including any withholding or deduction on such attributable to Additional AmountsAmounts payable hereunder) will shall not be less than the amount such holder the Holder would have received if such Taxes had not been withheld or deducted; provided.
(b) Neither the Issuers nor any Guarantor will, however, that no be required to pay Additional Amounts will be payable with respect to payments made to any holder a Holder or beneficial owner of a Security:
(1) to the extent the Taxes giving rise to such Taxes are Additional Amounts would not have been imposed by reason of (i) such holder but for the Holder’s or beneficial owner being considered to be owner’s present or to have been connected former connection with a the Relevant Taxing Jurisdiction, Jurisdiction (other than by the acquisition, ownership, holding or disposition of this Note, a Security or by reason of the receipt of payments thereunder or under any Guaranty or the exercise or enforcement of rights under any Securities or this Note Indenture or under any Note Guarantee or Guaranty);
(2) to the receipt extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the failure of payments in respect of this Note or any Note Guarantee, or (ii) such holder the Holder or beneficial owner not completing any procedural formalities that it of Securities, following the Issuers’ written request addressed to the Holder, to the extent such Holder or beneficial owner is legally eligible entitled to complete and are necessary for the Issuerdo so, Guarantors to comply with any certification, identification, information or other applicable reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding agent to make or obtain authorization to make payments without such of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior to a certification that the receipt of any payment on Holder or beneficial owner is not resident in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another the Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to ;
(i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”3) with respect to the Issuer any estate, inheritance, gift, sales, transfer or personal property tax or any Guarantorsimilar Taxes (other than stamp, issue, registration, court, documentation, excise or other similar Taxes referred to in Section 2.19(f));
(iii4) any Tax if such Holder is a fiduciary or partnership or Person other than the sole beneficial owner of such payment and the Taxes giving rise to such Additional Amounts would not have been imposed on interest by such payment had such Holder been the United States beneficiary, partner or any political subdivision sole beneficial owner, as the case may be, of such Security (but only if there is no material cost or governmental authority thereof expense associated with transferring such Security to such beneficiary, partner or therein by reason of any sole beneficial owner being a bank extending credit pursuant to a loan agreement entered into in and no restriction on such transfer that is outside the ordinary course control of its trade such beneficiary, partner or business or sole beneficial owner);
(iv) any United States federal tax imposed pursuant to FATCA, (v5) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes that are payable otherwise than by deduction or withholding from payments on, or in respect of, the applicable Security or Guaranty;
(6) with respect to any Taxes imposed on amounts payable to such Holder or beneficial owner at the time such Holder becomes a party to this Indenture, except to the extent that such Holder’s transferor or assignor (if any) was entitled, at the time of assignment, to receive Additional Amounts with respect to such Taxes pursuant to Section 2.19(a); and
(7) with respect to any combination of the items listed above.
(c) The Issuers and the Guarantors will (1) make such withholding or deduction required by applicable law and (2) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) Issuers and the Guarantors will use commercially reasonable efforts provide to obtain the Trustee either a certified copies copy of tax receipts evidencing such payment or, if such tax receipts are not reasonably available to the Issuers or such Guarantor, such other documentation that provides reasonable evidence of such payment by the Issuer Issuers or such Guarantor Guarantor.
(as applicabled) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 calendar days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Issuers or the Guarantors shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Securities is due and payable, in which case it shall be promptly thereafter), the Issuers shall deliver to the Trustee an Officers’ Certificate stating that such Additional Amounts shall be payable and the amounts so payable and shall set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date. The Issuers and the Guarantors shall promptly publish a notice in accordance with Section 12.2 stating that such Additional Amounts will be payable and describing the obligation to pay such amounts.
(e) The Issuers and the Guarantors, jointly and severally, shall indemnify and hold harmless the Holders of Securities, and, upon written request of any Holder of Securities, reimburse such Holder for the amount of (1) any Taxes levied or imposed by a Relevant Taxing Jurisdiction and payable by such Holder in connection with payments made under or with respect to the Securities held by such Holder or any Guaranties; and (2) any Taxes levied or imposed with respect to any reimbursement under the foregoing clause (1) or this clause (2), so that the net amount received by such Holder after such reimbursement shall not be less than the net amount such Holder would have received if the Taxes giving rise to the reimbursement described in clauses (1) and/or (2) had not been imposed; provided, however, that the indemnification obligation provided for in this Section 2.19(e) shall not extend to Taxes imposed for which the eligible Holder of the Securities would not have been eligible to receive payment of Additional Amounts hereunder or to the extent such Holder received Additional Amounts with respect to such payments.
(f) The Issuers and the Guarantors shall pay and jointly and severally shall indemnify and hold harmless the Holders of Securities, and upon written request of any Holder of Securities, reimburse such Holder for the amount of any present or future stamp, issue, registration, court, documentation, excise or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the execution, issue, registration or delivery of the Securities or any Guaranties or any other document or instrument referred to thereunder and any such taxes, charges or duties imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Securities or any Guaranty and/or any other such document or instrument. The provisions of this Section 2.19 shall survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor Person to the Issuers or any Guarantor and to any jurisdiction in which such successor is organized or is otherwise resident for tax purposes or any jurisdiction from or through which payment is made by such successor or its respective agents. Whenever this Indenture refers to, in any context, the payment of principal, premium, if any, interest or any other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before amount payable under or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any Security, such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing reference includes the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any terminationAmounts or indemnification payments as described hereunder, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) theretoif applicable.
Appears in 2 contracts
Sources: Indenture (FriendFinder Networks Inc.), Indenture (FriendFinder Networks Inc.)
Additional Amounts. All payments made under or with respect to this Note the Notes under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, ,” unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a any Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the — “Additional Amounts”) ” — as may be necessary so that the net amount (including Additional Amounts) received by each holder beneficial owner after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder beneficial owner would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder beneficial owner to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other otherwise than by the acquisition, ownership, holding or disposition of this Notethe Notes, the enforcement of rights under this Note the Notes or under any Note Guarantee or the receipt of payments in respect of this Note the Notes or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors a Guarantor or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this a Note or any Note Guarantee Guarantee, a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to current sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with (collectively, “FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian”). The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially all reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. No such Additional Amounts shall be payable with respect to the Notes under the Indenture or pursuant to any Note Guarantee where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the EU Savings Directive on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive. Wherever in the Indenture, this Note Indenture or the Notes or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Notethe Notes, (3) interest or (4) any other amount payable on or with respect to this Note any of the Notes or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, or interest or other amounts on this Note the Notes is to be made (unless an such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders Holders upon request. The Issuer will pay any present stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in any Relevant Taxing Jurisdiction from the execution, delivery and registration of Notes upon original issuance and initial resale of the Notes or any other document or instrument referred to therein or in connection with any payment with respect to, or enforcement of, the Notes or any Note Guarantee or any other document or instrument referred to herein or therein. If at any time the Issuer changes its place of organization to outside of the United States or there is a new issuer organized outside of the United States, the Issuer or new issuer, as applicable, will pay any stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in the jurisdiction in which the Issuer or new issuer is organized (or any political subdivision thereof or therein) and are payable by the Holders of the Notes in respect of the Notes or any Note Guarantee or any other document or instrument referred to therein under any law, rule or regulation in effect at the time of such change or thereafter. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) thereto.
Appears in 2 contracts
Sources: Indenture (Fresenius Medical Care AG & Co. KGaA), Indenture (Fresenius Medical Care AG & Co. KGaA)
Additional Amounts. (a) All payments made that the Issuers make under or with respect to this Note the Notes or that the Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments by or on behalf of the any jurisdiction (1) other than the United States, Germanyany state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, Luxembourgresident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the United Kingdom Paying Agent) makes any payment on the Notes or by or within any department or political subdivision or governmental authority thereof of or therein in any of the foregoing having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant such Issuer or Guarantor or other applicable withholding agent agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the an Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note Guarantee, the such Issuer or such Guarantor, as the case may be, will be required to shall pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder beneficial owner of the Notes after such withholding or deduction (including any withholding or deduction on such in respect of any Additional Amounts) will not be less than the amount such holder the beneficial owner would have received if such Taxes had not been withheld or deducted; provided.
(b) None of the Issuers or Guarantors shall, however, that no pay Additional Amounts will be payable with in respect to payments made to or on account of:
(i) any holder Taxes, to the extent such Taxes are imposed or levied by a Relevant Taxing Jurisdiction by reason of (i) such holder the Holder’s or beneficial owner being considered to be owner’s present or to have been connected former connection with a such Relevant Taxing Jurisdiction, Jurisdiction (other than by the acquisitionmere receipt, ownership, holding or disposition of this Notethe Notes, or by reason of the receipt of any payments in respect of any Notes or any Guarantee, or the exercise or enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note Notes or any Note Guarantee, or );
(ii) any Taxes to the extent such Taxes are imposed or withheld by reason of the failure of the Holder or beneficial owner of the Notes, following the Issuers’ written request addressed to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements (to the extent such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for do so), whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the Issuerrate of deduction or withholding of, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior to a certification that the receipt of any payment on Holder or beneficial owner is not resident in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another the Relevant Taxing Jurisdiction). Further;
(iii) any estate, no Additional Amounts shall be inheritance, gift, sales, transfer, personal property or similar Taxes;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes or any Guarantee;
(iv) any Tax imposed on interest or with respect to any payment by any of the United States Issuers or any political subdivision Guarantors to the Holder if such Holder is a fiduciary or governmental authority thereof partnership or therein by reason of any Person other than the sole beneficial owner holding or owning, actually or constructively, 10% or more of such payment to the total combined voting power extent that such Taxes would not have been imposed on such payment had such beneficial owner been the holder of all classes of stock of the Issuer or any Guarantor entitled to vote, such Note;
(iivi) any Tax that is imposed on interest or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the United States relevant Notes to another paying agent in a member state of the European Union;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period);
(viii) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the European Council Directive 2003/48/EC or any political subdivision other Directive implementing the conclusions of the ECOFIN Council meetings of November 26 and 27, 2000 on the taxation of savings income or governmental authority any law implementing or complying with, or introduced in order to conform to, any such Directive;
(ix) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 as of the Issue Date (or therein by reason of any beneficial owner being a controlled foreign corporation amended or successor version that is a related person within the meaning of substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 864(d)(41471(b)(1) of the Internal Revenue Code of 1986, 1986 as amended of the Issue Date (the “Code”) with respect to the Issuer or any Guarantoramended or successor version described above), and including (iiifor the avoidance of doubt) any Tax imposed on interest by intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or foregoing; or
(ivx) any United States federal tax imposed pursuant to FATCAcombination of the foregoing.
(c) The Issuers and the Guarantors, if the applicable withholding agent, shall (vi) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor .
(as applicabled) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 calendar days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on this Note with respect to the Notes or any Guarantee is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer Issuers or a any Guarantor will shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or any such paymentGuarantee is due and payable, in which case it will be promptly thereafter), the Issuer will promptly furnish Issuers shall deliver to the Trustee and Trustee, with a copy to the Paying Agent, if other than the Trustee, with an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set setting forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 stating that such Additional Amounts will be payable and describing its obligations to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including, without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (i) the execution, issue, delivery or registration of the Notes or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, the Notes or any Guarantee. Upon written request, any of the Issuers or a Guarantor (as applicable) will pay furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or Guarantor (as the Paying Agent case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02, in such Additional Amounts andform as provided in the normal course by the taxing authority imposing such Taxes. If, if paid notwithstanding the efforts of such Issuer or Guarantor to a Paying Agent obtain such receipts, the same are not obtainable, such Issuer or Guarantor will provide the Trustee or such Holder with other than evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, shall promptly the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee with documentation evidencing such information as may be reasonably available to such Issuer and the Guarantors (and not otherwise in the possession of the Trustee) to enable determination of the amount of any withholding Taxes attributable to any particular Holder(s).
(e) Whenever this Indenture or the Notes refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note (including payments thereof made pursuant to a Guarantee), such reference includes the payment of Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 , if applicable.
(f) This Section 4.12 will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction (other than the Indenture. References United States, any state thereof or the District of Columbia) in this Paragraph 2 which any successor Person to any of the Issuer Issuers or Guarantors is organized, resident or doing business for tax purposes or any Guarantor shall apply jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on the Notes (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to any successor(s) theretotax.
Appears in 2 contracts
Sources: Secured Indenture (Ardagh Finance Holdings S.A.), Senior Indenture (Ardagh Finance Holdings S.A.)
Additional Amounts. (a) All payments made that the Issuer makes under or with respect to this Note the Notes or that the Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of any jurisdiction in which the (1) the United States, Germany, Luxembourg, the United Kingdom Issuer or any political subdivision Guarantor is organized or governmental authority thereof is a resident for tax purposes or therein having the power to tax, (2) any jurisdiction from or through which any of the foregoing makes any payment on the Notes or any Note Guarantee is made, or by or within any department or political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposeseach, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the IssuerIssuer or such Guarantor, relevant Guarantor or other applicable withholding agent as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note GuaranteeNotes, the Issuer or such the Guarantor, as the case may be, will be required to shall pay such amount additional amounts in cash (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder Holder after such withholding or deduction (including any withholding or deduction on such attributable to Additional AmountsAmounts payable hereunder) will not be less than the amount such holder the Holder would have received if such Taxes had not been withheld or deducted; provided.
(b) Notwithstanding the foregoing, however, that each of the Issuer and the Guarantors shall pay no Additional Amounts will be payable with respect to payments made to a Holder or beneficial owner of any holder Note:
(i) to the extent the Taxes giving rise to such Taxes are Additional Amounts would not have been imposed but for the Holder’s or beneficial owner’s present or former connection with the Relevant Taxing Jurisdiction (other than a connection arising by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, Notes or by reason of the receipt of payments thereunder or under any Guarantee or the exercise or enforcement of rights under this Note any Notes or the Indenture or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or );
(ii) to the extent the Taxes giving rise to such holder Additional Amounts would not have been imposed but for the failure of the Holder or beneficial owner not completing any procedural formalities that it of Notes, following the Issuer’s written request addressed to the Holder, to the extent such Holder or beneficial owner is legally eligible entitled to complete and are necessary for the Issuerdo so, Guarantors to comply with any certification, identification, information or other applicable reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding agent to make or obtain authorization to make payments without such of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior to a certification that the receipt of any payment on Holder or beneficial owner is not resident in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another the Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to ;
(i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”iii) with respect to the Issuer any estate, inheritance, gift, sales, transfer or personal property tax or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or similar Taxes;
(iv) any United States federal tax if such Holder is a fiduciary or partnership or Person other than the sole beneficial owner of such payment and the Taxes giving rise to such Additional Amounts would not have been imposed pursuant on such payment had such Holder been the beneficiary, partner or sole beneficial owner, as the case may be, of such Note (but only if there is no material cost or expense associated with transferring such Note to FATCAsuch beneficiary, partner or sole beneficial owner and no restriction on such transfer that is outside the control of such beneficiary, partner or sole beneficial owner);
(v) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the presentation by the Holder of any Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(vi) with respect to German tax residents any Tax withheld by withholding or deduction that is imposed on a German custodian, who payment to an individual and that is required to deduct be made pursuant to the withholding tax from European Council Directive on the taxation of savings income which was adopted by the ECOFIN Council on June 3, 2003 or any law implementing or complying with, or introduced in order to conform to, such interest paymentsdirective (the “EU Savings Tax Directive”) or is required to be made pursuant to the Agreement between the European Community and the Swiss Confederation dated of October 26, provided that this Note is held 2004 providing for measures equivalent to those laid down in custody the EU Savings Tax Directive (the “EU-Swiss Savings Tax Agreement”) or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, such agreement; and
(vii) with such German custodianrespect to any combination of the items listed above. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will and the Guarantors shall also make such withholding or deduction of Taxes required by applicable law and remit the full amount of Taxes so deducted or withheld to the relevant authority as and when required Taxing Authority in accordance with all applicable lawlaws. The Issuer or any Guarantor (as applicable) will use commercially and the Guarantors shall make reasonable best efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes Taxes. The Issuer and will the Guarantors shall provide such certified copies to the Trustee. Wherever in , within a reasonable time after the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) date the payment of principalany Taxes so deducted or withheld is due pursuant to applicable law, (2) purchase prices in connection with either a purchase certified copy of Notes under tax receipts evidencing such payment or, if such tax receipts are not reasonably available to the Indenture Issuer or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guaranteesuch Guarantor, such reference shall be deemed to include other documentation that provides reasonable evidence of such payment of Additional Amounts as described under this heading to by the extent that, in Issuer or such context, Additional Amounts are, were or would be payable in respect thereof. Guarantor.
(c) At least 30 calendar days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on this Note with respect to the Notes is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer or a any Guarantor will shall be obligated to pay Additional Amounts with respect to any such paymentpayment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it will be promptly thereafter), the Issuer will promptly furnish shall deliver to the Trustee and the Paying Agent, if other than the Trustee, with Agent an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set setting forth such other information as is necessary to enable the such Trustee or the and Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer or shall promptly publish a Guarantor (as applicable) will pay to the Trustee or the Paying Agent notice in accordance with Section 13.02 stating that such Additional Amounts andwill be payable and describing its obligations to pay such amounts. In addition, if paid to a Paying Agent other than the TrusteeIssuer or any Guarantor, as the case may be, shall promptly provide pay (i) any present or future stamp, issue, registration, court documentation, excise or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the Trustee with documentation evidencing execution, issue, registration or delivery of the payment Notes or any Guarantee or any other document or instrument referred to thereunder and (ii) any such taxes, charges or duties imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes or any Guarantee and/or any other such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. document or instrument.
(d) The foregoing obligations in this Paragraph 2 will provisions shall survive any termination, defeasance or discharge of the Indenture and shall apply mutatis mutandis to any jurisdiction in which any Surviving Entity (as defined in Section 5.01(b)(i)) is organized or resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein or any jurisdiction from or through which payment is made by such Surviving Entity.
(e) Whenever the Indenture or the Notes refer to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note, such reference shall be deemed to include mention of the payment of Additional Amounts or indemnification payments as described hereunder, to the extent that in such context Additional Amounts or indemnification payments are, were or would be payable in respect thereof pursuant to Section 4.12 of the Indenture. References .
(f) The Issuer and the Guarantors, jointly and severally, shall indemnify and hold harmless the Holders and, upon written request of any Holder, reimburse such Holder for the amount of (i) any Taxes levied or imposed by a Relevant Taxing Jurisdiction and payable by such Holder in connection with payments made under or with respect to the Notes held by such Holder or any Guarantees; and (ii) any Taxes levied or imposed with respect to any reimbursement under the foregoing clause (i) or this clause (ii), so that the net amount received by such Holder after such reimbursement shall not be less than the net amount such Holder would have received if the Taxes giving rise to the reimbursement described in clauses (i) and/or (ii) had not been imposed, provided, however, that the indemnification obligation provided for in this Paragraph 2 paragraph (f) shall not extend to Taxes imposed for which the eligible Holder of the Notes would not have been eligible to receive payment of Additional Amounts hereunder or to the Issuer or any Guarantor shall apply extent such Holder received Additional Amounts with respect to any successor(s) theretosuch payments.
Appears in 2 contracts
Sources: Indenture (Digicel Group LTD), Indenture (Digicel Group LTD)
Additional Amounts. (a) All payments made that the Issuer makes under or with respect to this Note the Notes or that any Subsidiary Guarantor makes under the Indenture or pursuant with respect to any Note its Guarantee must shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of any jurisdiction in which the (1) the United States, Germany, LuxembourgIssuer, the United Kingdom Subsidiary Guarantor or any political subdivision Surviving Entity is incorporated, organized, engaged in business (where such Tax is imposed by reason of the Issuer, Subsidiary Guarantor, or governmental authority thereof Surviving Entity being engaged in business) or therein having the power to tax, (2) any jurisdiction otherwise resident for tax purposes or from or through which any of the foregoing makes any payment on the Notes or the Guarantees (including the jurisdiction of any Note Guarantee is made, paying agent) or by or within any department or political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the IssuerIssuer or such Subsidiary Guarantor, relevant Guarantor or other applicable withholding agent as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a any Subsidiary Guarantor is so required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note a Guarantee, the Issuer or such Subsidiary Guarantor, as the case may be, will be required to shall pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount received by each Holder of the Notes (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will shall be not be less than the amount such holder the Holder would have received if such Taxes had not been required to be withheld or deducted; provided.
(b) Neither the Issuer nor any Subsidiary Guarantor shall, however, that no pay Additional Amounts will be payable with in respect to payments made to or on account of:
(i) any holder to the extent such Taxes that are imposed or levied by a Relevant Taxing Jurisdiction by reason of a present or former connection of a Holder (ior a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if the Holder is an estate, a trust, a partnership or a corporation) or a beneficial owner with such holder Relevant Taxing Jurisdiction (other than the mere receipt or holding of Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under any Notes, Guarantees or this Indenture);
(ii) any Taxes that are imposed or levied by reason of the failure of the Holder or beneficial owner being considered of Notes, following the Issuer’s written request addressed to be the Holder (and made at a time which would enable the Holder or beneficial owner acting reasonably to have been connected comply with that request), to comply with any certification, identification, information or other reporting requirements which the Holder or such beneficial owner is legally required and legally entitled to satisfy, whether imposed by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, other than as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes Relevant Taxing Jurisdiction (including, without limitation, providing prior to a certification that the receipt of any payment on Holder or beneficial owner is not resident in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another the Relevant Taxing Jurisdiction). Further;
(iii) any estate, no Additional Amounts shall be inheritance, gift, sales, transfer or similar Taxes;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes or Guarantees;
(iv) any Tax that is imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of such Notes for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficial owner or Holder thereof would have been entitled to Additional Amounts had the Notes been presented for payment on any date during such 30 day period;
(vi) any Tax imposed on interest or with respect to any payment by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Subsidiary Guarantor to the Holder if such Holder is a fiduciary or partnership or person other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary, member of such partnership or the beneficial owner of such payment would not have been entitled to voteAdditional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note;
(iivii) any Tax that is imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the Issuer or any Guarantor, relevant Notes to another paying agent in a member state of the European Union;
(iiiviii) any Tax withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant payment to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who an individual and is required to deduct be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the withholding tax from conclusions of the ECOFIN Council meeting of 26–27 November 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such interest payments, provided that this Note is held in custody with such German custodian. Directive; or
(ix) any combination of the above.
(c) The Issuer or and any Subsidiary Guarantor shall (as applicablei) required to withhold any Taxes will make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant taxing authority as and when required in the Relevant Taxing Jurisdiction in accordance with applicable law.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes is due and payable, if the Issuer or any Subsidiary Guarantor shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it shall be promptly thereafter), the Issuer shall deliver to the Trustee an Officer’s Certificate stating that such Additional Amounts shall be payable and the amounts so payable and shall set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date. The Issuer shall promptly publish a notice in accordance with the provisions set forth in Section 13.02 stating that such Additional Amounts shall be payable and describing the obligation to pay such amounts.
(e) Upon request, the Issuer or any Guarantor (as applicable) will use commercially reasonable efforts the Subsidiary Guarantors shall furnish to obtain certified the Trustee or the Holder copies of tax receipts evidencing the payment of any Taxes by the Issuer or the applicable Subsidiary Guarantor in such Guarantor (form as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction provided in the normal course by the taxing authority imposing such Taxes and will provide such certified copies as is reasonably available to the TrusteeIssuer or the applicable Subsidiary Guarantor. Wherever If notwithstanding the efforts of the Issuer or the Subsidiary Guarantors to obtain such receipts, the same are not obtainable, the Issuer or the applicable Subsidiary Guarantor shall provide the Trustee or such Holder other evidence satisfactory to the Trustee or the Holder of such payments by the Issuer or the applicable Subsidiary Guarantor.
(f) In addition, the Issuer and the Subsidiary Guarantors shall pay any present or future stamp, issue, registration, documentation, excise or property taxes or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the Indentureexecution, this Note issue, delivery or registration of the Notes or any Note Guarantee there are mentionedother document or instrument referred to thereunder (other than in respect of the execution, issue, delivery or registration of Notes pursuant to Section 2.06, Section 2.07 or Section 2.10(a)(iv)) and any such taxes, charges or duties imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes and/or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes, and the Issuer and each Subsidiary Guarantor shall indemnify the Holders for any such taxes paid by such Holders.
(g) The obligations under this Section 4.17 shall apply mutatis mutandis to any jurisdiction in which any Surviving Entity or successor person to the Issuer is incorporated, organized, engaged in business or otherwise resident for tax purposes, or any political subdivision or taxing authority thereof or therein. Whenever this Indenture refers to, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or any other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before amount payable under or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any Note, such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing reference includes the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) theretoif applicable.
Appears in 2 contracts
Sources: Indenture (Invitel Holdings a/S), Indenture (Invitel Holdings a/S)
Additional Amounts. All payments made under or with respect to this Note under the Indenture Notes or pursuant to any Note a Guarantee must will be made free and clear of of, and without withholding or deduction for or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of the (1) government of the United States, Germany, Luxembourgcountries in which each of the Issuer, the United Kingdom relevant Guarantor and, in each case, any successor thereof (each, a “Payor”) is organized, or any political subdivision other jurisdiction in which the relevant Payor is organized or governmental authority thereof is otherwise resident for tax purposes, or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or in each case, including any political subdivision or governmental any authority or agency therein or thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent Payor is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof by the relevant government authority or agencythereof. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor Payor is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note a Guarantee, the Issuer or as applicable, such Guarantor, as the case may be, Payor will be required to pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each any holder after such withholding or deduction (including any such withholding or deduction on in respect of such Additional Amounts) will not be less than equal to the amount such the holder would have received if such Taxes had not been withheld or deducted; provided, however, that no the foregoing obligation to pay Additional Amounts will be payable with respect to payments made to does not apply to:
(1) any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant holder to or beneficial owner of a Note (or between a fiduciary, settlor, member, partner or shareholder of, or possessor of power over the extent such Taxes are imposed by reason of (irelevant holder, if the relevant holder is an estate, nominee, trust, partnership or corporation) and the Relevant Taxing Jurisdiction including, without limitation, such holder or beneficial owner being considered to be or to have having been connected with a Relevant Taxing Jurisdictiondomiciliary, other than by the acquisition, ownership, holding national or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guaranteeresident thereof, or (ii) such holder being or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors having been present or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or engaged in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business therein or having had a permanent establishment or fixed based therein (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by other than a German custodian, who is required to deduct connection resulting from the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies mere receipt of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee ownership or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment holding of such Additional Amounts. Copies Note or enforcement of such documentation shall be made available to rights thereunder or under the holders upon request. The foregoing obligations in this Paragraph 2 will survive Guarantee);
(2) any terminationestate, defeasance inheritance, gift, sales, excise, transfer, personal property tax or discharge of the Indenture. References in this Paragraph 2 to the Issuer similar tax, assessment or any Guarantor shall apply to any successor(s) thereto.other governmental charge;
Appears in 2 contracts
Sources: Indenture (Central European Media Enterprises LTD), Indenture (Central European Media Enterprises N.V.)
Additional Amounts. (1) All payments made under or with respect to this Note under the Indenture Notes or pursuant to any Note Guarantee must the Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future taxtaxes, dutyduties, levylevies, impostimposts, assessment assessments or other governmental charge (including penalties, interest and other liabilities related thereto) charges of whatever nature imposed or levied by or on behalf of any jurisdiction in which the (1) the United States, Germany, Luxembourg, the United Kingdom Issuer or any political subdivision Guarantor is organized, engaged in business or governmental authority thereof resident for tax purposes or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, made or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Relevant Taxing Jurisdiction”)) and any interest, penalties and other liabilities with respect thereto (collectively, “Taxes”), unless the Issuer, relevant Guarantor withholding or other applicable withholding agent deduction of such Taxes is required to withhold or deduct Taxes by law or by the relevant taxing authority’s interpretation or administration thereof by thereof. In the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of event that the Issuer or a Guarantor is so required to so withhold or deduct any amount for or on account of any such Taxes from any payment made under or with respect to the Notes or any Note GuaranteeNotes, the Issuer or such Guarantor, as the case may be, will be required to shall pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so that the net amount received by each Holder of the Notes (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will shall be not be less than the amount that such holder Holder would have received if such Taxes had not been required to be withheld or deducted; provided.
(2) Notwithstanding Section 4.10(1), however, that no neither the Issuer nor any Guarantor shall pay Additional Amounts will be payable to a Holder or beneficial owner of any Note in respect or on account of:
(a) any Taxes that are imposed or levied by a Relevant Taxing Jurisdiction by reason of the Holder’s (or, if applicable, its partner’s, its shareholder’s or beneficial owner’s) present or former connection with such Relevant Taxing Jurisdiction InterXion Holding N.V. Indenture Page 61 (including, but not limited to, citizenship, nationality, residence, domicile, or existence of a business, a permanent establishment, a dependent agent, a place of business or a place of management present or deemed present within the Relevant Taxing Jurisdiction) other than the mere receipt or holding of any Note or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under such Note, any Guarantee or this Indenture;
(b) any Taxes that are imposed or withheld by reason of the failure of the Holder or beneficial owner of any Note, prior to the relevant date on which a payment under and with respect to payments made the Notes is due and payable (the “Relevant Payment Date”), to comply with the Issuer’s written request addressed to the Holder at least 30 calendar days prior to the Relevant Payment Date to provide accurate information with respect to any holder certification, identification, information or other reporting requirements concerning nationality, residence, identity or connection with the Relevant Taxing Jurisdiction which the Holder or such beneficial owner is legally required to the extent such Taxes are satisfy, whether imposed by reason of (i) statute, treaty, regulation or administrative practice, in each such holder or beneficial owner being considered to be or to have been connected with a case by the Relevant Taxing Jurisdiction, other than as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes Relevant Taxing Jurisdiction (including, without limitation, providing prior to a certification that the receipt of any payment on Holder or beneficial owner is not resident in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another the Relevant Taxing Jurisdiction);
(c) any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(d) any Tax that is payable other than by deduction or withholding from payments made under or with respect to any Note or Guarantee;
(e) any Tax which would not have been so imposed but for the presentation (where presentation is required in order to receive payment) by the Holder or beneficial owner of a Note for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment thereof is duly provided for, whichever occurs later, except to the extent that the Holder or beneficial owner would have been entitled to such Additional Amounts on presenting the same for payment on any day (including the last day) within such 30-day period;
(f) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the European Council Directive 2003/48/EC or any Directive otherwise implementing the conclusions of the ECOFIN Council meetings of 26 and 27 November 2000 or any law implementing or complying with, or introduced in order to conform to, any such Directive;
(g) any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by requesting that a payment on the Note be made by, or presenting a Note for a payment to, another Paying Agent in an EU Member State;
(h) any Tax that is imposed on or with respect to any payment made to any Holder who is a fiduciary or partnership or an entity that is not the sole beneficial owner of such payment, to the extent that a beneficiary or settlor (for tax purposes) with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note; or
(i) any withholding or deduction required to be made from a payment pursuant to sections 1471-1474 of the U.S. Internal Revenue Code, as of the issue date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) (the “Code”), any current or future regulations or official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing or any agreements entered into pursuant to section 1471(b)(1) of the Code. FurtherIn addition, no Additional Amounts shall not be payable with respect to (i) any Tax Taxes that are imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason in respect of any beneficial owner holding or owning, actually or constructively, 10% or more combination of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodianabove items. The Issuer or any Guarantor (as applicable) required shall also make or cause to withhold any Taxes will make be made such withholding or deduction of Taxes and remit the full amount of Taxes so deducted or withheld to the relevant taxing authority as and when required in accordance with all applicable lawlaws. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts shall, upon request, make available to obtain certified copies of tax receipts evidencing the Holders, within 30 days after the date on which the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Issuer or if, notwithstanding the Issuer’s reasonable efforts to obtain such receipts, the same are not obtainable, other evidence reasonably satisfactory to the Trustee. Wherever in Trustee of such payment by the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofIssuer. At least 30 calendar days prior to each date on which any payment of principal, premiumunder or with respect to the Notes is due and payable, if any, interest the Issuer or other amounts on this Note is a Guarantor shall be obliged to be made pay Additional Amounts with respect to such payment (unless an such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such datethe date on which payment under or with respect to the Notes is due and payable, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated shall deliver to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will shall be payable and the amounts so payable, payable and will set setting forth such other information as is necessary to enable the Trustee or the Paying Agent Agents to pay such Additional Amounts to the holders Holders and beneficial owners on the payment date. The Trustee shall be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary. In addition, the Issuer or the Guarantor shall pay: (i) any present or future stamp, issue, registration, transfer, documentation, court, excise or property taxes or other similar taxes, charges and duties, including interest, penalties and Additional Amounts with respect thereto imposed or levied by any Relevant Taxing Jurisdiction, in respect of the execution, issue, delivery or registration of the Notes, this Indenture or the Guarantees, or any other document or instrument referred to thereunder (other than transfers of the Notes following the initial resale of the Notes by the initial purchasers of the Notes); (ii) any such taxes, charges or duties imposed by any Relevant Taxing Jurisdiction as a Guarantor (as applicable) will pay result of, or in connection with, the enforcement of the Notes, Guarantees or any other such document or instrument following the occurrence of any Event of Default with respect to the Trustee Notes; and (iii) any stamp, court or documentary taxes (or similar charges or levies) imposed by any Relevant Taxing Jurisdiction with respect to the receipt of any payments with respect to the Notes or the Paying Agent Guarantees (limited to any such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon requesttaxes (or similar charges or levies) that are not excluded under Section 4.10(2)(a) through Section 4.10(2)(c) or Section 4.10(2)(e) through Section 4.10(2)(i) or any combination thereof). The foregoing obligations in this Paragraph 2 will provisions shall survive any termination, defeasance or discharge of the Indenture. References this Indenture and shall apply mutatis mutandis to any jurisdiction in this Paragraph 2 which any Surviving Entity (as defined below) or successor person to the Issuer or a Guarantor is organized, engaged in business or resident for tax purposes or any Guarantor shall apply political subdivision or taxing authority or agency thereof or therein. Whenever in this Indenture there is mentioned, in any context, the payment of principal (and premiums, if any), Redemption Price, interest or any other amount payable under or with respect to any successor(s) theretoNote (including payments thereof made pursuant to any Guarantee), such mention shall be deemed to include mention of the payment of Additional Amounts.
Appears in 1 contract
Sources: Indenture (InterXion Holding N.V.)
Additional Amounts. (a) All payments made amounts paid or credited by the Company under or with respect to this Note the Notes will be made net of any withholding or deduction for or on account of any present or future Taxes imposed or levied by or on behalf of the government of Canada, any province or territory of Canada or any political subdivision or any authority or agency therein or thereof having power to tax, or any jurisdiction in which the Company is organized, resident, or doing business for tax purposes, or from or through which the Company (or its agents) makes any payment on the Notes, or any Taxing Authority thereof, and the Company will not be required to pay any additional amounts to Holders in respect of any Taxes to the extent that such Taxes at any time become payable.
(b) All payments made by or on behalf of any Guarantor (each such payor, a “Payor”) under the Indenture or pursuant with respect to any Note Guarantee must Guarantee, are required to be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) Taxes imposed or levied by or on behalf of the (1) the United Statesgovernment of Canada, Germany, Luxembourg, the United Kingdom any province or territory of Canada or any political subdivision or governmental any authority or agency therein or thereof or therein having the power to tax, (2) or any other jurisdiction in which such Guarantor is organized, is carrying on business in for tax purposes, or is otherwise resident for tax purposes or any jurisdiction from or through which payment on is made (including the Notes or jurisdiction of any Note Guarantee is madepaying agent) (each, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent such Payor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. thereof.
(c) If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor any Payor is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any a Note Guarantee, the Issuer or such Guarantor, as the case may be, Payor will be required to pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so that the net amount received by a Holder or a Beneficial Holder of Notes (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder Holder or Beneficial Holder of Notes would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to Taxes payable by virtue of: (1) the extent applicable Payor does not deal at arm’s length (within the meaning of the Tax Act) with such Taxes are imposed by reason Holder or Beneficial Holder at the time of the payment; (i2) such holder Holder or beneficial owner Beneficial Holder being considered to be either (a) a “specified non- resident shareholder” of the Company or to have been connected a relevant Guarantor or (b) a non-resident person who does not deal at arm’s length with a specified shareholder of the Company or a Guarantor, in each case for purposes of subsection 18(5) of the Tax Act; (3) any connection between such Holder or Beneficial Holder of Notes and the Relevant Taxing Jurisdiction, Jurisdiction other than by a connection resulting from the mere acquisition, ownership, holding or disposition of this Noteof, or the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this of, any Notes or Note Guarantees or any Note Guarantee, or beneficial interests therein; (ii4) such holder Holder or beneficial owner not completing any procedural formalities that it Beneficial Holder failing to duly and timely comply (where such Holder or Beneficial Holder is legally eligible to complete and are necessary for do so) with a timely request of the IssuerCompany to comply with information, Guarantors documentation, certification or other evidentiary requirements concerning such Holder’s or Beneficial Holder’s nationality, residence, entitlement to treaty benefits, identity or connection with the Relevant Taxing Jurisdiction, if and to the extent that due and timely compliance with such request would have resulted in the reduction or elimination of any Taxes as to which Additional Amounts would have otherwise been payable to such Holder or Beneficial Holder of Notes but for this clause (4), and provided that the Company provides written notice of such requirement to the applicable withholding agent to make Holder or obtain authorization to make payments without such Taxes Beneficial Holder of at least thirty (including, without limitation, providing 30) days prior to the receipt date of the payment in respect of which Additional Amounts would be payable; (5) such Holder or Beneficial Holder being a fiduciary, a partnership or not the beneficial owner of any payment on or in respect of this Note or any Note Guarantee a completeNote, correct if and executed IRS Form W-8 or W-9 or substitute or successor formto the extent that, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Furtherresult of an applicable tax treaty, no Additional Amounts shall be would have been payable had the beneficiary, partner or beneficial owner owned the Note directly (but only if there is no material cost or expense associated with transferring such Note to such beneficiary, partner or beneficial owner and no restriction on such transfer that is outside the control of such beneficiary, partner or beneficial owner); (6) such Tax being an estate inheritance, gift, sales, transfer or personal property Tax or any similar Tax with respect to a Note, or (i7) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more combination of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled foregoing clauses (1) to vote(6), (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986Taxes, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into other than Taxes described in the ordinary course of its trade or business or foregoing clauses (iv1) through (7) above, being “Indemnified Taxes”).
(d) The applicable Payor shall make any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer Upon request, the Company shall provide the Trustee with official receipts or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts other documentation evidencing the payment of the Taxes with respect to which Additional Amounts are paid. Each Guarantor will indemnify and hold harmless each Holder and Beneficial Holder for the amount of (1) any Indemnified Taxes not withheld or deducted by the Issuer or such Guarantor (and levied or imposed and paid by such Holder or Beneficial Holder as applicable) a result of any Taxes so deducted payments made under or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies with respect to the Trustee. Wherever Note Guarantees, (2) any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, and (3) any Indemnified Taxes imposed with respect to any reimbursement under Section 2.13(c)(1) or Section 2.13(c)(2) above.
(e) If a Payor is or will become obligated to pay Additional Amounts under or with respect to any payment made on a Note Guarantee, then at least thirty (30) days prior to the date of such payment (or, if such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, promptly after the date that the obligation to pay Additional Amount arises), such Payor will deliver to the Trustee an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount so payable and such other information necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date.
(f) Whenever in the Indenture, this Note or any Note Guarantee Indenture there are mentioned, is mentioned in any context, : (1) the payment of principal, ; (2) redemption prices or purchase prices in connection with a redemption or purchase of Notes under the Indenture or this Note, Notes; (3) interest interest; or (4) any other amount payable on or with respect to this Note any of the Notes or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on .
(g) The obligations described under this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 heading will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 Indenture and any transfer by an applicable Holder or Beneficial Holder of its Notes to the Issuer another applicable Holder or any Guarantor shall apply to any successor(s) thereto.Beneficial Holder, and will apply, mutatis
Appears in 1 contract
Sources: Trust Indenture
Additional Amounts. All payments made under or with respect to this Note under on the Indenture or pursuant to any Note Guarantee must Book-Entry Notes of a Series will be made free and clear of and without deduction or withholding or deduction for or on account of any present or future taxTaxes, dutyduties, levy, impost, assessment assessments or other governmental charge (including penalties, interest and other liabilities related thereto) imposed charges of whatever nature unless the withholding or levied deduction is then required by law. If any such deduction or on behalf of the (1) the United States, Germany, Luxembourg, withholding is required by the United Kingdom or any political subdivision or governmental taxing authority thereof or therein having ("Taxes"), each owner of Book-Entry Notes of a Series so affected shall be entitled to receive from the power Book-Entry Depositary additional amounts ("Additional Amounts") to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having extent that such owner would be entitled to receive Additional Amounts under the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered Indenture to be determined by treating the owner of any Book-Entry Interest as a resident Holder or engaged in business Beneficial Owner for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by purposes of Section 10.04 of the relevant government authority or agencyIndenture). If At least 10 days prior to the Issuer, a Guarantor or other applicable first date on which withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will would be required to pay such amount (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each holder after such withholding under applicable law or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At required pursuant to this Section 2.12 to be made, and at least 30 10 days prior to each any subsequent such date on which payment of principalif there has been any change with respect to such matters, premiumthe Issuer will furnish the Book-Entry Depositary with an Officers' Certificate that shall specify the amount, if any, interest or other amounts on this Note is required to be made (unless an obligation withheld on such payments to pay the Depositary and the amount of Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on Depositary, net of amounts to which the payment dateDepositary or any owner of such Book-Entry Interest is not entitled. The Issuer Book-Entry Depositary shall have no responsibility for determining whether the Depositary or any owner of a Guarantor (as applicable) will pay Book-Entry Interest is entitled to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation , but shall be made available entitled to rely conclusively for this purpose on the Officers' Certificate or on certifications from the Depositary. Notwithstanding anything to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any terminationcontrary provided above, defeasance the Book-Entry Depositary shall pay or discharge cause to be paid Additional Amounts only out of the Indenture. References in this Paragraph 2 to funds that shall be received by it from the Issuer or any Guarantor shall apply to any successor(s) theretofor that purpose.
Appears in 1 contract
Additional Amounts. (a) All payments made that the Issuers make under or with respect to this Note the Notes or that the Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments by or on behalf of the any jurisdiction (1) other than the United States, Germanyany state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, Luxembourgresident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the United Kingdom Paying Agent) makes any payment on this Note or by or within any department, political subdivision or governmental authority thereof of or therein in any of the foregoing having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant such Issuer or Guarantor or other applicable withholding agent agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the an Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes this Note or any Note Guarantee, the such Issuer or such Guarantor, as the case may be, will be required to shall pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder beneficial owner of the Notes, after such withholding or deduction (including any withholding or deduction on such in respect of any Additional Amounts) will not be less than the amount such holder the beneficial owner would have received if such Taxes had not been withheld or deducted; provided.
(b) None of the Issuers or Guarantors will, however, that no pay Additional Amounts will be payable with in respect to payments made to or on account of:
(i) any holder Taxes, to the extent such Taxes are imposed or levied by a Relevant Taxing Jurisdiction by reason of (i) such holder the Holder’s or beneficial owner being considered to be owner’s present or to have been connected former connection with a such Relevant Taxing Jurisdiction, Jurisdiction (other than by the acquisitionmere receipt, ownership, holding or disposition of this Note, or by reason of the receipt of any payments in respect of any Notes or any Guarantee, or the exercise or enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note Notes or any Note Guarantee, or );
(ii) any Taxes to the extent such Taxes are imposed or withheld by reason of the failure of the Holder or beneficial owner of this Note, following the Issuers’ written request addressed to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements (to the extent such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for do so), whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the Issuerrate of deduction or withholding of, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(iii) any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to Guarantee;
(iv) any Tax imposed on interest or with respect to any payment by any of the United States Issuers or any political subdivision Guarantors to the Holder if such Holder is a fiduciary or governmental authority thereof partnership or therein by reason of any Person other than the sole beneficial owner holding or owning, actually or constructively, 10% or more of such payment to the total combined voting power extent that such Taxes would not have been imposed on such payment had such beneficial owner been the holder of all classes of stock of the Issuer or any Guarantor entitled to vote, such Note;
(iivi) any Tax that is imposed on interest or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the United States relevant Notes to another paying agent in a member state of the European Union;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had this Note been presented on the last day of such 30-day period);
(viii) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the European Council Directive 2003/48/EC or any political subdivision other Directive implementing the conclusions of the ECOFIN Council meetings of November 26 and 27, 2000 on the taxation of savings income or governmental authority any law implementing or complying with, or introduced in order to conform to, any such Directive;
(ix) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 as of the Issue Date (or therein by reason of any beneficial owner being a controlled foreign corporation amended or successor version that is a related person within the meaning of substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 864(d)(41471(b)(1) of the Internal Revenue Code of 1986, 1986 as amended of the Issue Date (the “Code”) with respect to the Issuer or any Guarantoramended or successor version described above), and including (iiifor the avoidance of doubt) any Tax imposed on interest by intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or foregoing; or
(ivx) any United States federal tax imposed pursuant to FATCAcombination of the foregoing.
(c) The Issuers and the Guarantors, if the applicable withholding agent, shall (vi) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or .
(d) At least 30 calendar days prior to each date on which any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note Guarantee is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer Issuers or a any Guarantor will shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to this Note or any such paymentGuarantee is due and payable, in which case it will be promptly thereafter), the Issuer will promptly furnish Issuers shall deliver to the Trustee and Trustee, with a copy to the Paying Agent, if other than the Trustee, with an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set setting forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 of the Indenture stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (i) the execution, issue, delivery or registration of this Note or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, this Note or any Guarantee. Upon written request, any of the Issuers or a Guarantor (as applicable) will pay furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or such Guarantor (as the Paying Agent case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02 of the Indenture, in such Additional Amounts andform as provided in the normal course by the taxing authority imposing such Taxes. If, if paid notwithstanding the efforts of such Issuer or Guarantor to a Paying Agent obtain such receipts, the same are not obtainable, such Issuer or such Guarantor will provide the Trustee or such Holder with other than evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, shall promptly the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee with documentation evidencing such information as may be reasonably available to such Issuers and the Guarantors (and not otherwise in the possession of the Trustee) to enable the determination of the amount of any withholding taxes attributable to any particular Holder(s).
(e) Whenever the Indenture or this Note refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to this or any other Note (including payments thereof made pursuant to a Guarantee), such reference includes the payment of Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph , if applicable.
(f) This paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References Indenture and shall apply mutatis mutandis to any jurisdiction (other than the United States, any state thereof or the District of Columbia) in this Paragraph 2 which any successor Person to any of the Issuer Issuers or Guarantors is organized, resident or doing business for tax purposes or any Guarantor shall apply jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on this or any other Note (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to any successor(s) theretotax.
Appears in 1 contract
Sources: Indenture (Ardagh Group S.A.)
Additional Amounts. All payments made under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, or interest or other amounts on this Note the Notes is to be made (unless an such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts pursuant to Paragraph 2 of the Notes (the “Additional Amounts”) with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders Holders upon request. The Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or expense incurred without negligence or willful misconduct on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished to them pursuant to this Section 4.12. The Issuer will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copy to the Trustee. If the Issuer or the Guarantors conduct business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than a Relevant Taxing Jurisdiction and, as a result, are required by the law of such Additional Taxing Jurisdiction to deduct or withhold any amount on account of taxes imposed by such Additional Taxing Jurisdiction from payments under the Notes which would not have been required to be so deducted or withheld but for such conduct of business in such Additional Taxing Jurisdiction, the Additional Amounts provision described above shall be considered to apply to such Holders as if references in such provision to “Taxes” included taxes imposed by way of deduction or withholding by any such Additional Taxing Jurisdiction (or any political subdivision thereof or taxing authority therein). The Issuer will pay any present stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in Luxembourg (or any political subdivision thereof or therein) from the execution, delivery and registration of Notes upon original issuance and initial resale of the Notes or any other document or instrument referred to therein. If at any time the Issuer changes its place of organization to outside of Luxembourg or there is a new issuer organized outside of Luxembourg, the Issuer or new issuer, as applicable, will pay any stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in the jurisdiction in which the Issuer or new issuer is organized (or any 32 Table of Contents political subdivision thereof or therein) and are payable by the Holders of the Notes in respect of the Notes or any other document or instrument referred to therein under any law, rule or regulation in effect at the time of such change, or in connection with, the enforcement of the Notes or any such other document or instrument. The foregoing obligations in of this Paragraph 2 Section 4.12 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 Indenture and will apply mutatis mutandis to any successor Person to the Issuer or the Guarantors. Whenever in this Indenture or in the Notes there is mentioned, in any Guarantor shall apply context, the payment of principal, premium or interest, if any, or any other amount payable under or with respect to any successor(s) theretoNote, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 1 contract
Additional Amounts. All (a) The Company and any Subsidiary Guarantor are required to make all payments made under this Indenture or with respect to this Note under the Indenture or pursuant to any Note Guarantee must be made Notes issued hereunder free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or on behalf of the (1) government of the United States, Germany, Luxembourg, country in which the United Kingdom Company or Subsidiary Guarantor and any successor thereof is organized or incorporated or any political subdivision or governmental any authority or agency therein or thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor Company or any Subsidiary Guarantor is organized or otherwise considered to be a resident or engaged in business for tax purposespurposes or the jurisdiction of any Paying Agent (each, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Company or a Subsidiary Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. thereof.
(b) If the IssuerCompany, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer any Subsidiary Guarantor, or a Guarantor Paying Agent is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes Notes, the Company or any Note Guarantee, the Issuer or such Guarantor, as the case may be, Subsidiary Guarantor will be required to pay such amount additional amounts (such amount the “Additional Amounts”) with respect to the Notes as may be necessary so that the net amount received by any Holder or beneficial owner (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder Holder or beneficial owner would have received if such Taxes had not been withheld or deducted; provided, however, that no the foregoing obligation to pay Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of does not apply to:
(i) such any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant Holder or beneficial owner and the Relevant Taxing Jurisdiction (including a connection between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, the relevant holder or beneficial owner, if the relevant holder or beneficial owner is an estate, nominee, trust, partnership or corporation, and the Relevant Taxing Jurisdiction) including, without limiting the generality of the foregoing, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, partner, member, shareholder, or possessor) of the Notes being considered or having been a citizen, resident, or national thereof or being or having been present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(ii) any estate, inheritance, gift, sales, transfer or personal property tax or similar Taxes;
(iii) any withholding or deduction in respect of the Notes (a) where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC (as amended from time to time) or any law implementing or complying with, or introduced in order to conform to, such Directive, or (b) presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant note to any other paying agent, or (c) where the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the notes for payment within 30 days after the date on which such payment on the notes became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the holder or beneficial owner would have been entitled to Additional Amounts had the notes been presented on the last day of such 30-day period);
(iv) any Taxes imposed with respect to any payment of principal of (or premium, if any, on) or interest on the Notes by the Company or any Subsidiary Guarantor to any Holder or beneficial owner who is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder or beneficial owner of such Notes;
(v) any Taxes that are payable other than by deduction or withholding from payments made under or with respect to the Notes;
(vi) any Taxes that would not have been imposed but for the failure of the Holder and/or beneficial owner (a) to comply with the Company’s or the paying agent’s request in writing at least 30 days before any withholding for such Taxes to the Holder to provide certification, documentation, information or other evidence concerning the nationality, residence, entitlement to treaty benefits, identity or connection with the Relevant Taxing Jurisdiction of the Holder and/or beneficial owner of such Notes, or (b) to make any valid or timely declaration or similar claim or satisfy any other reporting requirement or to have been connected with a provide any information relating to such matters, whether required or imposed by statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction, other than as a precondition to exemption from, or reduction in the rate of withholding or deduction of, Taxes imposed by the acquisition, ownership, holding Relevant Taxing Jurisdiction;
(vii) any Taxes that are required to be deducted or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of withheld from any payment on under or in respect of this Note the Notes as a consequence of the Holder or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding of Notes or owning, actually or constructively, 10% or more the recipient of the total combined voting power of all classes of stock of interest payable on the Issuer or any Guarantor entitled to vote, Notes not dealing at arm’s length (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended Income Tax Act (the “Code”Canada)) with respect to the Issuer Company or any Guarantor, Subsidiary Guarantor at the time of making any such payment;
(iiiviii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is Taxes that are required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so be deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies any payment under or in respect of the Notes as a consequence of the Holder or beneficial owner of the Notes being at any time a ‘‘specified non-resident shareholder’’ (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Company or at any time not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with a “specified shareholder” (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Company or as a consequence of the payment being deemed to be a dividend under the Trustee. Wherever in Income Tax Act (Canada);
(ix) any taxes payable under section 1471 through 1474 of the Indenture, this Note Code (or any Note Guarantee there are mentionedsuccessor or amended versions thereof), any regulations or other official guidance thereunder, or any agreement (including any intergovernmental agreement or any law implementing such governmental agreement) entered into in connection therewith (“FATCA”);
(x) any contextTaxes or penalties arising from the Holder’s or beneficial owner’s failure to comply with the Holder’s or beneficial owner’s obligations imposed under Part XVIII of the Income Tax Act (Canada), the Canada-United States Enhanced Tax Information Exchange Agreement Implementation Act (Canada) or the similar provisions of legislation of any other jurisdiction that has entered into an agreement with the United States of America to provide for the implementation of FATCA based reporting; or
(xi) any combination of, or any Taxes arising from a combination of the factors described in, (1i) the payment of principal, to (2x) purchase prices in connection with a purchase of Notes under the Indenture or this Note, above.
(3c) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 calendar days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on this Note with respect to the Notes is to be made due and payable (unless an such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor Company will be obligated to pay Additional Amounts with respect to any such payment, the Issuer Company will promptly furnish deliver to the U.S. Trustee and paying agent for the Paying Agent, if other than the Trustee, with affected Notes an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable, payable and will set forth such other information necessary to enable the U.S. Trustee or paying agent, as the Paying Agent case may be, to pay such Additional Amounts to the holders Holders and beneficial owners of such Notes on the payment date. Each such Officers’ Certificate shall be relied upon until receipt of a further Officers’ Certificate addressing such matters.
(d) The Issuer Company will also (i) make such withholding or a Guarantor deduction and (as applicableii) will pay remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will provide the U.S. Trustee or the Paying Agent such Additional Amounts andwith official receipts or, if paid notwithstanding the efforts of the Company official receipts are not obtainable, other documentation reasonably satisfactory to a Paying Agent other than the U.S. Trustee, shall promptly provide the Trustee with documentation evidencing the payment of any Tax so deducted or withheld for each Relevant Taxing Jurisdiction imposing such Additional AmountsTaxes. Copies The Company will attach to each official receipt or other documentation a certificate stating (x) that the amount of such Tax evidenced by the official receipt or other documentation shall be was paid in connection with payments in respect of the principal amount of such Notes then outstanding and (y) the amount of such Tax paid per $1,000 of principal amount of such Notes.
(e) Whenever reference is made available in this Indenture, in any context, to (i) the payment of principal, (ii) redemption prices or purchase prices in connection with a redemption or purchase of Notes, (iii) interest or (iv) any other amount payable on or with respect to the holders upon request. Notes, such reference will be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are or would be payable in respect thereof.
(f) The foregoing Company will pay any present or future stamp, court, documentary or other similar taxes, charges or levies that arise in any jurisdiction from the execution, delivery or registration of, or enforcement of rights under, this Indenture or any related document.
(g) The obligations in described under this Paragraph 2 Section 2.13 will survive any termination, defeasance or discharge of the Indenture. References this Indenture and will apply mutatis mutandis to any jurisdiction in this Paragraph 2 which any successor Person to the Issuer Company is organized or any Guarantor political subdivision or taxing authority or agency thereof or therein.
(h) The Company and the Subsidiary Guarantors shall apply indemnify and hold harmless the Trustees for the amount of any Taxes in respect of which the Company, or any Subsidiary Guarantor, is required to pay Additional Amounts pursuant to Section 2.13(b) that are levied or imposed and paid by the Trustees as a result of payments made under or with respect to the Notes or any successor(s) theretoSubsidiary Guarantee, including any reimbursements under this clause 2.13(h).
Appears in 1 contract
Sources: Indenture (Open Text Corp)
Additional Amounts. (a) All payments made by or on behalf of the Company under or with respect to this Note under the Indenture Notes, or by or on behalf of any Guarantor pursuant to any Note Guarantee must the Guarantees, will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) Taxes imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental taxing authority thereof or therein having the power to tax, (2) in any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor Company or any Guarantor is organized or otherwise considered to be a resident or then incorporated, organized, engaged in business or resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax or any jurisdiction from or through which payment is made by the Company or any Guarantor (each a the “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencythereof. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer Company or a Guarantor is so required obligated to withhold or deduct any amount for or on account of such Taxes from any payment made under or with respect to the Notes or any Note GuaranteeNotes, the Issuer Company or such Guarantor, as applicable, will:
(1) make such withholding or deduction;
(2) remit the case may befull amount deducted or withheld to the relevant government authority in accordance with the applicable law;
(3) subject to the limitations below, will be required to pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) amounts received by each holder Holder or beneficial owner of Notes, after such withholding or deduction (including any such withholding or deduction on such Additional Amounts) will not be less than the amount such holder Holder or beneficial owner would have received if such Taxes had not been withheld or deducted;
(4) furnish to the Trustee for the benefit of the Holders and beneficial owners of Notes, within 60 days after the date of the payment or remittance of any Taxes is due pursuant to applicable law, certified copies of an official receipt of the relevant government authorities for all amounts deducted or withheld pursuant to applicable law, other documentation evidencing the payment by the Company or such Guarantor, as applicable, of those Taxes; providedand
(5) at least 15 days prior to each date on which any Additional Amounts are payable (or promptly if the obligation to pay Additional Amounts arises after the 15th day prior to that payment date), howeverdeliver to the Trustee an Officer’s Certificate (which shall be conclusive absent manifest error) setting forth the calculation of the Additional Amounts to be paid and such other information as the Trustee may request to enable the Trustee to pay such Additional Amounts to Holders on the payment date. Notwithstanding the foregoing, that no Additional Amounts will be payable paid with respect to payments made to any holder to the extent such or in respect of a payment:
(1) for Taxes are imposed by reason of any Holder or beneficial owner of the Notes not dealing at arm’s length (iwithin the meaning of the Income Tax Act (Canada)) with the Company or such holder Guarantor at the time of making such payment;
(2) for or on account of Taxes imposed on a payment under or with respect to a Note or Guarantee all or a portion of which is deemed under subsection 214(16) of the Income Tax Act (Canada) to be a dividend;
(3) to the extent that any Taxes giving rise to the Additional Amounts are assessed or imposed by reason of the Holder or beneficial owner being considered a “specified shareholder” as defined in subsection 18(5) of the Income Tax Act (Canada) of the Company or not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with a “specified shareholder” of the Company;
(4) for or on account of Taxes assessed or imposed by reason of the legal nature of the Holder or beneficial owner disentitling such Holder or beneficial owner to be the benefit of an applicable treaty or convention if, and to the extent that, the application of such treaty or convention would have resulted in the reduction or elimination of any Taxes as to which Additional Amounts would otherwise have been connected payable to a Holder or beneficial owner;
(5) for or on account of Taxes assessed or imposed by reason of the Holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant Holder or beneficial owner, if the relevant Holder or beneficial owner is an estate, trust, nominee, partnership, limited liability company or corporation) being a resident, domiciliary or national of, incorporated in, or engaged in business or maintaining a permanent establishment or other physical presence in or otherwise having some present or former connection with a the Relevant Taxing Jurisdiction, other Jurisdiction otherwise than by the mere acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee Notes or the receipt of payments in respect or enforcement rights thereunder;
(6) for or on account of this Note any Taxes assessed, imposed or any Note Guarantee, deducted or (ii) such holder withheld by reason of the failure of the Holder or beneficial owner not completing of the Note to comply with any procedural formalities that it certification, identification, documentation or other reporting requirements if compliance is required by law (including any applicable tax treaty), regulation or by reason of the interpretation or administration of such law by the relevant Governmental Authority, and the Holder or beneficial owner is legally eligible to complete and are necessary do so, as a pre-condition to exemption from, or reduction in the rate of withholding or deduction of such Taxes;
(7) for or on account of any Tax assessed, imposed or deducted or withheld as a result of the Issuerpresentation of any Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder or beneficial owner (except to the extent that the Holder or beneficial owner would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(8) for or on account of any estate, Guarantors inheritance, gift, sales, value added, transfer, use, capital gains, excise Tax, personal property or similar Tax, assessment or other applicable governmental charge;
(9) for or on account of any Tax, duty, assessment or other governmental charge that is payable otherwise than by withholding agent to make or obtain authorization to make deduction from payments without such Taxes (including, without limitation, providing prior under or with respect to the receipt Notes (other than Taxes payable pursuant to Regulation 803 of the Income Tax Act (Canada), or any similar successor provision or equivalent provision of any provincial or territorial law);
(10) for or on account of any Tax imposed or assessed with respect to any payment on a Note to any Holder who is a fiduciary, partnership or in respect other entity other than the sole beneficial owner of this Note that payment to the extent that such Tax would not have been imposed had the Holder of the Notes been the beneficiary or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable settler with respect to the fiduciary, a member of that partnership or sole beneficial owner of the payment;
(i11) any Tax imposed for or on interest by the United States or any political subdivision or governmental authority thereof or therein by reason account of any beneficial owner holding Tax, duty, assessment or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled other governmental charge imposed pursuant to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended, as of the Issue Date (and any amended (or successor version that is substantively comparable), any current or future regulations or official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the “Code”) United States with respect to the Issuer foregoing or any Guarantor, agreements entered into pursuant to Section 1471(b)(1) of the Code; or
(iii12) any Tax imposed on interest by combination of the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into exceptions listed in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, clauses (1) through (11) immediately above.
(b) Any reference in this Indenture to the payment of principal, (2) premium, if any, interest, purchase prices in connection with a purchase of Notes under the Indenture price, redemption price or this Note, (3) interest or (4) any other amount payable on under or with respect to this Note or any Note GuaranteeNote, such reference shall will be deemed to include the payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior The Company’s and the Guarantors’ obligation to each date on make payments of Additional Amounts will survive any termination of this Indenture or the defeasance of any rights thereunder, any transfer by a Holder of its Notes (subject to the exclusions described in clauses (1) through (12) of Section 4.20(a)), and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Company or any Guarantor is organized, incorporated, engaged in business or is otherwise resident or treated as resident for tax purposes, or any jurisdiction from or through which payment is made by or on behalf of principalsuch successor Person (including, premium, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such paymentwithout limitation, the Issuer will promptly furnish the Trustee and jurisdiction of the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such ).
(c) The Trustee shall have no duty whatsoever to determine whether any Additional Amounts will be are payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) theretoamount thereof.
Appears in 1 contract
Sources: Indenture (Enerflex Ltd.)
Additional Amounts. All payments made under If the Issuers (or with respect to this Note under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related theretoa Guarantor) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law to deduct or withhold taxes imposed by the interpretation Bermuda, Ireland or administration thereof by the relevant government authority or agency. If the Issueranother Relevant Tax Jurisdiction on payments to Holders, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is it will pay to any Holder so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the “Additional Amounts”) as entitled all additional amounts that may be necessary so that the net every Net Payment of interest, principal, premium or other amount (including Additional Amounts) received by each holder after such withholding the beneficial owner on that Note or deduction (including any withholding or deduction on such Additional Amounts) the Note Guarantee will not be less than the amount such holder provided for in that Note or the Note Guarantee.
(a) The Issuers (and the Guarantors) will also indemnify and reimburse Holders for:
(1) Taxes (including any interest, penalties and related expenses) imposed on the Holders (or if a Holder is not the beneficial owner, the beneficial owner) by a Relevant Tax Jurisdiction if and to the same extent that a Holder would have received been entitled to receive additional amounts if such Taxes the Issuers (or a Guarantor) or other applicable withholding agent had been required to deduct or withhold those taxes from payments on the Notes or the Note Guarantees; and
(2) Stamp, court, issue, registration, documentary or similar taxes or charges (including any interest, penalties and related expenses) imposed by a Relevant Tax Jurisdiction in connection with the execution, delivery, enforcement or registration of the Notes or the Note Guarantees or other related documents and obligations.
(b) The Issuers (or a Guarantor) will not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made pay additional amounts to any holder to Holder for or on account of any of the extent following:
(1) Any tax, assessment or other governmental charge imposed solely because at any time there is or was a connection between such Taxes are imposed by reason Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of or possessor of power over the relevant Holder if the Holder is an estate, nominee, trust, partnership, limited liability company, or corporation) and the Relevant Tax Jurisdiction imposing the tax (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by any connection arising as a result of receipt of a payment or the acquisition, ownership, disposition or holding of, or disposition of this Note, the enforcement of rights under this under, a Note or under the Note Guarantees);
(2) Any estate, inheritance, gift or any similar tax, assessment or other governmental charge;
(3) Any tax, assessment or other governmental charge imposed solely because such Holder (or if such Holder is not the beneficial owner, the beneficial owner) fails to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with the taxing jurisdiction of such Holder or any beneficial owner of the Note Guarantee or the receipt of payments in respect of this Note Guarantees, if compliance is required by law or any Note Guaranteeby an applicable income tax treaty to which the jurisdiction imposing the tax is a party, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible as a precondition to complete and are necessary for an exemption from the Issuertax, Guarantors assessment or other applicable withholding agent to make or obtain authorization to make payments without governmental charge for which such Taxes Holder is eligible and the Issuers (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form Guarantor) have given the Holders at least 60 days’ written notice that Holders will be required by another Relevant Taxing Jurisdiction). Furtherto provide such information and identification; and
(4) Any tax, no Additional Amounts shall be payable assessment or other governmental charge with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any a Note Guarantee there are mentioned, in any context, (1) the presented for payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least more than 30 days prior to each after the date on which payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that such Holder of principal, premium, if any, interest or other the Note would have been entitled to additional amounts on this presenting the Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after for payment on any date during the 30th 30-day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) theretoperiod.
Appears in 1 contract
Sources: Indenture (Aircastle LTD)
Additional Amounts. All payments (a) Payments made by the Issuers under or with respect to this Note under the Indenture Notes or pursuant any of the Subsidiary Guarantors with respect to any Note Subsidiary Guarantee must shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties“Taxes”) unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, interest and other liabilities related thereto) or on account of, any Taxes imposed or levied by or on behalf of the (1) the United Statesany jurisdiction in which any Issuer or any Subsidiary Guarantor is at any relevant time organized, Germany, Luxembourg, the United Kingdom engaged in business for tax purposes or resident for tax purposes or any political subdivision or governmental authority thereof or therein having the power to tax, or (2) any jurisdiction from or through which payment is made by or on the Notes behalf of any Issuer or any Note Guarantee is made, Subsidiary Guarantor (including the jurisdiction of any paying agent) or any political subdivision or governmental authority thereof or therein having the power to tax or (3each, a “Tax Jurisdiction”) will at any other jurisdiction in which the payor is organized or otherwise considered time be required to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes made from any payment payments made by any Issuer under or with respect to the Notes or any Note of the Subsidiary Guarantors with respect to any Subsidiary Guarantee, the Company, the Co-Issuer or such the relevant Subsidiary Guarantor, as the case may beapplicable, will be pay to each Holder of Notes that are outstanding on the date of the required to pay payment, such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so that the net amount received by the applicable beneficial owner (including the Additional Amounts) received by each holder after such withholding or deduction (including any such withholding or deduction on such in respect of Additional Amounts) will not be less than equal the amount such holder beneficial owner would have received if such Taxes had not been withheld or deducted; provided, however, provided that no Additional Amounts will be payable with respect to payments made a payment to any holder to a Holder or beneficial owner of the extent Notes in respect of the following Taxes (“Excluded Taxes”):
(i) Canadian Taxes imposed because the Company does not deal at arm’s-length (within the meaning of the Income Tax Act (Canada)) with such Holder or beneficial owner at the time of making such payment,
(ii) Taxes are imposed by reason of (i) such holder Holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other relevant Tax Jurisdiction or any province or territory thereof otherwise than by the acquisition, ownership, mere holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee Notes or the receipt of payments in respect of this of, or enforcement of, such Note or a Subsidiary Guarantee,
(iii) Taxes payable as a result of such Holder’s or beneficial owner’s failure to comply with a timely request of the Company to comply with any Note Guaranteecertification, identification, documentation or other reporting requirements if compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to exemption from, or (ii) a reduction in the rate of deduction or withholding of, Taxes imposed by a relevant Tax Jurisdiction to which such holder Holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuerentitled,
(iv) estate, Guarantors inheritance, gift, sales, transfer or other applicable withholding agent to make or obtain authorization to make payments without such similar Taxes,
(v) Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note which the payment could have been made without deduction or any Note Guarantee a completewithholding for such Taxes if such Holder or beneficial owner had presented such Notes for payment within 30 days after the date on which such payment on such Notes became due and payable or the date on which payment thereof is duly provided for, correct and executed IRS Form W-8 whichever is later (except to the extent that such Holder or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no beneficial owner would have been entitled to Additional Amounts shall had such Notes been presented on the last day of such 30-day period),
(vi) Canadian Taxes imposed because such payment is deemed (under subsection 214(16) of the Income Tax Act (Canada)) to be payable with respect a dividend paid by the Company to such Holder or beneficial owner because such Holder or beneficial owner is a “specified shareholder” (iwithin the meaning of subsection 18(5) of the Income Tax Act (Canada)),
(vii) any Tax U.S. federal withholding Taxes imposed on interest solely by reason of the Holder or beneficial owner:
(A) being or having been engaged in a trade or business in the United States or any political subdivision having or governmental authority thereof having had a permanent establishment or therein by reason of any beneficial owner holding fixed base in the United States;
(B) having another current or owningformer connection with the United States, actually including being or constructively, 10% having been a citizen or more resident of the total combined voting power of all classes of stock United States, but excluding a connection resulting solely from acquiring, owning or disposing of the Issuer Notes, receiving payment thereunder or under any Guarantor entitled to vote, Subsidiary Guarantee or enforcing its rights thereunder or under any Subsidiary Guarantee;
(iiC) any Tax imposed on interest by being or having been a “10-percent shareholder” of the United States Company as defined in section 871(h)(3) of the Code or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4described in section 881(c)(3)(C) of the Internal Revenue Code of 1986, as amended Code; or
(the “Code”D) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business or business;
(ivviii) any United States federal tax withholding or deduction imposed pursuant to FATCAcurrent Sections 1471 through 1474 of the Code or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to current Section 1471(b)(1) of the Code or any amended or successor provision that is substantively comparable and not materially more onerous to comply with, and any fiscal or regulatory legislation, rules or official administrative practices adopted pursuant to any intergovernmental agreement, treaty or convention among governmental authorities and implementing such Sections of the Code, or
(vix) with respect to German tax residents any Tax withheld by a German custodiancombination of the Taxes described in the above clauses in this proviso.
(b) If it is the applicable withholding agent, who is required to deduct the withholding tax from such interest paymentsCompany, provided that this Note is held in custody with such German custodian. The the Co-Issuer or any the relevant Subsidiary Guarantor shall also:
(as applicablei) required to withhold any Taxes will make such withholding or deduction and deduction, and
(ii) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. .
(c) The Company, the Co-Issuer or the relevant Subsidiary Guarantor will furnish, within 30 days after the date on which the payment of any Guarantor (as applicable) will use commercially reasonable efforts Taxes is due pursuant to obtain certified applicable law, to the Trustee on behalf of the Holders of the applicable Notes that are outstanding on the date of the required payment, copies of tax receipts receipts, if any (or other documentation), evidencing the payment payments of Taxes made by the Company, the Co-Issuer or a Subsidiary Guarantor, as the case may be, on behalf of the Holders or beneficial owners of the applicable Notes. The Issuers and the Subsidiary Guarantors will indemnify and hold harmless each Holder (for itself and its applicable beneficial owners) and upon written request reimburse each such Guarantor Holder for the amount of:
(as applicablei) of any Taxes (other than Excluded Taxes) so deducted levied or withheld from each Relevant Taxing imposed by a relevant Tax Jurisdiction imposing and paid by such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note Holder or any Note Guarantee there are mentioned, in any context, (1) the payment beneficial owners as a result of principal, (2) purchase prices in connection with a purchase of Notes payments made under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note the Notes or any Note Subsidiary Guarantee,
(ii) any liability (including penalties, interest and expense) arising from such reference shall be deemed Taxes described in clause (i) above or with respect thereto, and
(iii) any Taxes (other than Excluded Taxes) imposed by a relevant Tax Jurisdiction with respect to include payment of Additional Amounts as described any reimbursement under this heading clause (i) or (ii) above. In addition to the extent thatforegoing, in such contextthe Issuers and the Subsidiary Guarantors will also pay and indemnify each Holder (for itself and its applicable beneficial owners) for any present or future stamp, Additional Amounts areissue, were registration, transfer, court or would be payable in documentary taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and any other liabilities related thereto) which are levied by any relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, this Indenture, any Subsidiary Guarantee or any other document referred to therein, or the receipt of any payments with respect thereof. thereto, or enforcement of, any of the Notes or any Subsidiary Guarantee.
(d) At least 30 days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on this Note with respect to the Notes is to be made due and payable (unless an such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Company, the Co- Issuer or a Subsidiary Guarantor will be becomes obligated to pay Additional Amounts with respect to any such payment, the Company, the Co-Issuer will promptly furnish or the relevant Subsidiary Guarantor, as applicable, shall deliver to the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating the fact that such Additional Amounts will shall be payable payable, and the amounts so payable, payable and will shall set forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders of the Notes on the payment date. The Issuer or a Guarantor Whenever in this Indenture there is mentioned, in any context:
(as applicablei) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of principal (and premium, if any),
(ii) purchase prices in connection with a repurchase of Notes,
(iii) interest, or
(iv) any other amount payable on or with respect to any of the Notes or any Subsidiary Guarantee, such Additional Amounts. Copies of such documentation mention shall be made available deemed to include mention of the payment of Additional Amounts provided for in this Section 4.19 to the holders upon request. extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The foregoing obligations in this Paragraph 2 Section 4.19 will survive any termination, defeasance or discharge of the this Indenture. References , any transfer by a Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in this Paragraph 2 which any successor Person to the Company, the Co-Issuer or any Subsidiary Guarantor shall apply to is organized, engaged in business for tax purposes or resident for tax purposes or any successor(sjurisdiction from or through which such Person makes any payment on the Notes (or any Subsidiary Guarantee) theretoor any political subdivision thereof or therein.
Appears in 1 contract
Sources: Indenture
Additional Amounts. All payments made by the Issuer and the Guarantors under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must Notes and the Guarantees of the Notes will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment assessment, or other governmental charge of whatever nature (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom any government or any political subdivision or governmental territory or possession of any government or authority or agency or authority therein or thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Taxing Authority”) in any jurisdiction in which the Issuer or any Guarantor (including their permitted successors and assigns) is then incorporated, engaged in business or resident for tax purposes or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, ) unless the Issuer, relevant Issuer or the Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law Law or by the relevant Taxing Authority’s interpretation or administration thereof by the relevant government authority or agencythereof. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a any Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, Guarantees (as the case may be), the Issuer or the Guarantors (as the case may be) will be required to pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so that the net amount received by each Holder of the Notes (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than equal to the amount such holder the Holder of the Notes would have received if such Taxes had not been withheld or deducted; provided, however, provided that no Additional Amounts will be payable with respect to payments a payment made to any holder a Holder of the Notes (an “Excluded Holder”) to the extent extent:
(1) any such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to would not have been connected with a imposed but for the existence of any present or former connection between such Holder of the Notes and the Relevant Taxing Jurisdiction, other Jurisdiction imposing such Taxes otherwise than merely by the acquisition, ownership, holding ownership or disposition of this Note, such Note or receiving any payment in respect thereof or the exercise or enforcement of any rights under this Note or under any Note Guarantee the Notes or the receipt Guarantees of payments in respect the Notes; or
(2) such Holder of this Note the Notes would not have been liable for or any Note Guaranteesubject to such withholding or deduction on account of such Taxes but for the failure to make a valid declaration of non-residence or similar claim for exemption or to provide information concerning nationality, residence or connection with the Relevant Taxing Jurisdiction if:
(a) the making of such declaration or claim or provision of such information is required or imposed by statute, treaty, regulation, ruling or administrative practice of a Taxing Authority of the Relevant Taxing Jurisdiction as a pre-condition to an exemption from, or reduction in, such Taxes; and
(iib) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing at least 60 days prior to the receipt first payment date with respect to which the Issuer or the Guarantors shall apply this clause (2), the Issuer and the Parent Guarantor shall have notified that Holder of the Notes in writing that they shall be required to provide such declaration, claim or information; or
(3) such Holder of the Notes would have been able to avoid such Taxes by presenting the relevant Note to another Paying Agent in a member state of the European Union (as constituted on the Issue Date) or in the United States; or
(4) any such Taxes would not have been imposed but for the presentation by the Holder of such Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due or payable or was duly provided for, whichever is later; or
(5) where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(6) of any payment on or in respect combination of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdictionthe immediately preceding clauses (1) to (5) (inclusive). FurtherIn addition, no Additional Amounts shall will not be payable with respect to (i) any Tax imposed on interest by the United States estate, inheritance, gift, sales, transfer, personal property or any political subdivision similar tax, assessment or other governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) charge with respect to the Issuer such Notes or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld which is payable otherwise than by a German custodiandeduction or withholding from payments of principal of, who is required to deduct premium or discount, if any, or interest on the withholding tax from such interest payments, provided that this Note is held in custody with such German custodianNotes. The Issuer or any Guarantor the Guarantors (as applicablethe case may be) will also (1) make any required to withhold any Taxes will make such withholding or deduction deduction; and (2) remit the full amount deducted or withheld to the relevant authority as and when required Taxing Authority in accordance with applicable lawLaw. The Issuer or any Guarantor the Guarantors (as applicablethe case may be) will use commercially make reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction Authority imposing such Taxes and Taxes. The Issuer or the Guarantors (as the case may be) will provide such certified copies use reasonable efforts to furnish to the Holders of the Notes (with a copy to the Trustee), within 30 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable Law, either certified copies of tax receipts evidencing such payment by the Issuer or the Guarantors (as the case may be) or, if such receipts are not obtainable, other evidence of such payments by the Issuer or the Guarantors (as the case may be). Wherever At least 30 days prior to each date on which any payment under or with respect to the Notes is due and payable, if the Issuer or the Guarantors (as the case may be) will be obliged to pay Additional Amounts with respect to such payment, the Issuer or the Guarantors (as the case may be) will deliver to the Trustee and the Principal Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the Paying Agent on behalf of the Trustee to pay such Additional Amounts to the Holders on the payment date. Whenever in the Indenture, this Note or any Note Guarantee Indenture there are is mentioned, in any context, (1) the payment of amounts based upon the principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Notepremium, (3) interest or (4) of any other amount payable on under, or with respect to this Note or to, any Note Guaranteeof the Notes, such reference mention shall be deemed to include mention of the payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on The Issuer and the Guarantors will pay and indemnify the Holder against any stamp, stamp duty reserve, transfer, court or documentary taxes, or any other excise or property taxes, charges or similar levies which payment arise from the original execution, delivery or registration of principalthe Notes, premiumthe initial resale thereof by the initial purchasers, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or any transfer of Definitive Registered Notes issued as a result of and at any time after the 30th day prior Issuer has determined that Global Notes should be exchanged for Definitive Registered Notes pursuant to such dateSection 2.06(a)(3) above and the enforcement of the Notes, in which case it shall be promptly thereafter), if the Issuer Guarantees of the Notes or a Guarantor will be obligated to pay Additional Amounts the Note Security Documents following the occurrence of any Event of Default with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon requestNotes. The foregoing obligations in this Paragraph 2 will provisions shall survive any termination, defeasance or discharge of the Indenture. References Notes and shall apply mutatis mutandis to any jurisdiction in this Paragraph 2 which any successor Person to the Issuer or the Guarantor, as the case may be, is organized, engaged in business, resident for tax purposes, or otherwise subject to taxation on a net income basis or any Guarantor shall apply to any successor(s) theretopolitical sub-divisions or Taxing Authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Inmarsat Holdings LTD)
Additional Amounts. (a) All payments made that the Issuer makes under or with respect to this Note the Notes or that the Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments by or on behalf of any jurisdiction in which the Issuer or any Guarantor is incorporated, organized, resident or doing business for tax purposes or any jurisdiction from or through which any payment on the Notes is made (1including the jurisdiction of any Paying Agent) the United States, Germany, Luxembourg, the United Kingdom or by or within any political subdivision or governmental authority thereof of or therein in any of the foregoing having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the IssuerIssuer or such Guarantor, relevant Guarantor or other applicable withholding agent as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencylaw. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount amounts for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction are required to be withheld or deducted from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such the Guarantor, as the case may be, will be required to pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such in respect of any Additional Amounts) will not be less than the amount such holder that would have been received if such Taxes had not been withheld or deducted; provided.
(b) Notwithstanding the foregoing, neither the Issuer nor any Guarantor will, however, that no be required to pay Additional Amounts will be payable with in respect to payments made to or on account of:
(i) any holder Taxes, to the extent such Taxes are imposed or levied by a Relevant Taxing Jurisdiction by reason of (i) the holder’s or beneficial owner’s present or former connection with such Relevant Taxing Jurisdiction, including, without limitation, the holder or beneficial owner being considered to be being, or to have been connected with having been, a citizen, national, or resident, being, or having been, engaged in a trade or business, or having or having had a permanent establishment in a Relevant Taxing JurisdictionJurisdiction (but not including, other than by in each case, any connection arising from the acquisitionmere receipt, ownership, holding or disposition of this NoteNotes, or by reason of the receipt of any payments in respect of any Note or any Guarantee, or the exercise or enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note Notes or any Note Guarantee, or );
(ii) any Taxes to the extent such Taxes are imposed or withheld by reason of the failure of the holder or beneficial owner of Notes, following the Issuer’s or Guarantor’s written request addressed the relevant holder or beneficial owner made at a time that would enable the holder or beneficial owner acting reasonably to comply with such request, to comply with any certification, identification, information or other reporting requirements (to the extent such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for do so), whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the Issuerrate of deduction or withholding of, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior a certification that the holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(iii) any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the receipt of Notes or any Guarantee;
(v) any Tax imposed on or with respect to any payment by the Issuer or Guarantor to the holder if such holder is a fiduciary, partnership, limited liability company or person other than the sole beneficial owner of such payment to the extent that Taxes would not have been imposed on such payment had such holder been the sole beneficial owner of such Note;
(vi) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required in order to receive payment) more than 30 calendar days after the relevant payment is first made available to the holder (except to the extent that the holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 calendar days’ period);
(vii) any Taxes withheld or deducted on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect pursuant to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more Sections 1471 through 1474 of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the U.S. Internal Revenue Code of 1986, as amended (commonly referred to as “FATCA”), any treaty, law, regulation or other official guidance enacted by any jurisdiction implementing FATCA, any agreement between either of the “Code”) with respect to the Issuer Issuer, any Guarantor or any Guarantor, (iii) any Tax imposed on interest by other person and the United States or a Relevant Taxing Jurisdiction implementing FATCA, or any political subdivision or governmental authority thereof or therein by reason law of any beneficial owner being a bank extending credit pursuant to a loan jurisdiction implementing an intergovernmental agreement entered into in between the ordinary course of its trade or business or (iv) any Relevant Taxing Jurisdiction and the United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor FATCA;
(as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4viii) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment combination of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made items (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor i) through (as applicablevii) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) theretoabove.
Appears in 1 contract
Sources: Indenture (Danaos Corp)
Additional Amounts. (a) All payments made that the Issuers make under or with respect to this Note the Notes or that the Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments by or on behalf of the any jurisdiction (1) other than the United States, Germanyany state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, Luxembourgresident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the United Kingdom Paying Agent) makes any payment on this Note or by or within any department, political subdivision or governmental authority thereof of or therein in any of the foregoing having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant such Issuer or Guarantor or other applicable withholding agent agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the either Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes this Note or any Note Guarantee, the such Issuer or such Guarantor, as the case may be, will be required to shall pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder beneficial owner of the Notes, after such withholding or deduction (including any withholding or deduction on such in respect of any Additional Amounts) will not be less than the amount such holder the beneficial owner would have received if such Taxes had not been withheld or deducted; provided.
(b) None of the Issuers or Guarantors will, however, that no pay Additional Amounts will be payable with in respect to payments made to or on account of:
(i) any holder Taxes, to the extent such Taxes are imposed or levied by a Relevant Taxing Jurisdiction by reason of (i) such holder the Holder’s or beneficial owner being considered to be owner’s present or to have been connected former connection with a such Relevant Taxing Jurisdiction, Jurisdiction (other than by the acquisitionmere receipt, ownership, holding or disposition of this Note, or by reason of the receipt of any payments in respect of any Notes or any Guarantee, or the exercise or enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note Notes or any Note Guarantee, or );
(ii) any Taxes to the extent such Taxes are imposed or withheld by reason of the failure of the Holder or beneficial owner of this Note, following the Issuers’ written request addressed to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements (to the extent such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for do so), whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the Issuerrate of deduction or withholding of, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(iii) any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to Guarantee;
(iv) any Tax imposed on interest or with respect to any payment by any of the United States Issuers or any political subdivision Guarantors to the Holder if such Holder is a fiduciary or governmental authority thereof partnership or therein by reason of any Person other than the sole beneficial owner holding or owning, actually or constructively, 10% or more of such payment to the total combined voting power extent that such Taxes would not have been imposed on such payment had such beneficial owner been the holder of all classes of stock of the Issuer or any Guarantor entitled to vote, such Note;
(iivi) any Tax that is imposed on interest or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the United States relevant Notes to another paying agent in a member state of the European Union;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had this Note been presented on the last day of such 30-day period);
(viii) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 as of the Issue Date (or any political subdivision amended or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation successor version that is a related person within the meaning of substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 864(d)(41471(b)(1) of the Internal Revenue Code of 1986, 1986 as amended of the Issue Date (the “Code”) with respect to the Issuer or any Guarantoramended or successor version described above), and including (iiifor the avoidance of doubt) any Tax imposed on interest by intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or foregoing; or
(ivix) any United States federal tax imposed pursuant to FATCAcombination of the foregoing.
(c) The Issuers and the Guarantors, if the applicable withholding agents, shall (vi) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or .
(d) At least 30 calendar days prior to each date on which any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note Guarantee is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer Issuers or a any Guarantor will shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to this Note or any such paymentGuarantee is due and payable, in which case it will be promptly thereafter), the Issuer will promptly furnish Issuers shall deliver to the Trustee and Trustee, with a copy to the Paying Agent, if other than the Trustee, with an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set setting forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 of the Indenture stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (i) the execution, issue, delivery or registration of this Note or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, this Note or any Guarantee. Upon written request, any of the Issuers or a Guarantor (as applicable) will pay furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or such Guarantor (as the Paying Agent case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02 of the Indenture, in such Additional Amounts andform as provided in the normal course by the taxing authority imposing such Taxes. If, if paid notwithstanding the efforts of such Issuer or Guarantor to a Paying Agent obtain such receipts, the same are not obtainable, such Issuer or such Guarantor will provide the Trustee or such Holder with other than evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, shall promptly the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee with documentation evidencing such information as may be reasonably available to such Issuers and the Guarantors (and not otherwise in the possession of the Trustee) to enable the determination of the amount of any withholding taxes attributable to any particular Holder(s).
(e) Whenever the Indenture or this Note refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to this or any other Note (including payments thereof made pursuant to a Guarantee), such reference includes the payment of Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph , if applicable.
(f) This paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References Indenture and shall apply mutatis mutandis to any jurisdiction (other than the United States, any state thereof or the District of Columbia) in this Paragraph 2 which any successor Person to any of the Issuer Issuers or Guarantors is organized, resident or doing business for tax purposes or any Guarantor shall apply jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on this or any other Note (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to any successor(s) theretotax.
Appears in 1 contract
Sources: Indenture (Ardagh Group S.A.)
Additional Amounts. (a) All payments made that the Issuers make under or with respect to this Note the Notes or that the Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments by or on behalf of the any jurisdiction (1) other than the United States, Germanyany state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, Luxembourgresident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the United Kingdom Paying Agent) makes any payment on this Note or by or within any department, political subdivision or governmental authority thereof of or therein in any of the foregoing having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant such Issuer or Guarantor or other applicable withholding agent agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the an Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes this Note or any Note Guarantee, the such Issuer or such Guarantor, as the case may be, will be required to shall pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder beneficial owner of the Notes, after such withholding or deduction (including any withholding or deduction on such in respect of any Additional Amounts) will not be less than the amount such holder the beneficial owner would have received if such Taxes had not been withheld or deducted; provided.
(b) None of the Issuers or Guarantors will, however, that no pay Additional Amounts will be payable with in respect to payments made to or on account of:
(i) any holder Taxes, to the extent such Taxes are imposed or levied by a Relevant Taxing Jurisdiction by reason of (i) such holder the Holder’s or beneficial owner being considered to be owner’s present or to have been connected former connection with a such Relevant Taxing Jurisdiction, Jurisdiction (other than by the acquisitionmere receipt, ownership, holding or disposition of this Note, or by reason of the receipt of any payments in respect of any Notes or any Guarantee, or the exercise or enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note Notes or any Note Guarantee, or );
(ii) any Taxes to the extent such Taxes are imposed or withheld by reason of the failure of the Holder or beneficial owner of this Note, following the Issuers’ written request addressed to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements (to the extent such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for do so), whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the Issuerrate of deduction or withholding of, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(iii) any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to Guarantee;
(iv) any Tax imposed on interest or with respect to any payment by any of the United States Issuers or any political subdivision Guarantors to the Holder if such Holder is a fiduciary or governmental authority thereof partnership or therein by reason of any Person other than the sole beneficial owner holding or owning, actually or constructively, 10% or more of such payment to the total combined voting power extent that such Taxes would not have been imposed on such payment had such beneficial owner been the holder of all classes of stock of the Issuer or any Guarantor entitled to vote, such Note;
(iivi) any Tax that is imposed on interest or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the United States relevant Notes to another paying agent in a member state of the European Union;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had this Note been presented on the last day of such 30-day period);
(viii) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the European Council Directive 2003/48/EC, as amended or supplemented from time to time, including through European Council Directive 2014/48/EC or any political subdivision other Directive implementing the conclusions of the ECOFIN Council meetings of November 26 and 27, 2000 on the taxation of savings income or governmental authority any law implementing or complying with, or introduced in order to conform to, any such Directive;
(ix) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 as of the Issue Date (or therein by reason of any beneficial owner being a controlled foreign corporation amended or successor version that is a related person within the meaning of substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 864(d)(41471(b)(1) of the Internal Revenue Code of 1986, 1986 as amended of the Issue Date (the “Code”) with respect to the Issuer or any Guarantoramended or successor version described above), and including (iiifor the avoidance of doubt) any Tax imposed on interest by intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or foregoing; or
(ivx) any United States federal tax imposed pursuant to FATCAcombination of the foregoing.
(c) The Issuers and the Guarantors, if the applicable withholding agent, shall (vi) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or .
(d) At least 30 calendar days prior to each date on which any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note Guarantee is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer Issuers or a any Guarantor will shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to this Note or any such paymentGuarantee is due and payable, in which case it will be promptly thereafter), the Issuer will promptly furnish Issuers shall deliver to the Trustee and Trustee, with a copy to the Paying Agent, if other than the Trustee, with an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set setting forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 of the Indenture stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (i) the execution, issue, delivery or registration of this Note or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, this Note or any Guarantee. Upon written request, any of the Issuers or a Guarantor (as applicable) will pay furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or such Guarantor (as the Paying Agent case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02 of the Indenture, in such Additional Amounts andform as provided in the normal course by the taxing authority imposing such Taxes. If, if paid notwithstanding the efforts of such Issuer or Guarantor to a Paying Agent obtain such receipts, the same are not obtainable, such Issuer or such Guarantor will provide the Trustee or such Holder with other than evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, shall promptly the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee with documentation evidencing such information as may be reasonably available to such Issuers and the Guarantors (and not otherwise in the possession of the Trustee) to enable the determination of the amount of any withholding taxes attributable to any particular Holder(s).
(e) Whenever the Indenture or this Note refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to this or any other Note (including payments thereof made pursuant to a Guarantee), such reference includes the payment of Additional Amounts. Copies of such documentation shall be made available to the holders upon request. , if applicable.
(f) The foregoing obligations in this Paragraph 2 preceding provisions will survive any termination, defeasance or discharge of the Indenture. References Indenture and shall apply mutatis mutandis to any jurisdiction (other than the United States, any state thereof or the District of Columbia) in this Paragraph 2 which any successor Person to any of the Issuer Issuers or Guarantors is organized, resident or doing business for tax purposes or any Guarantor shall apply jurisdiction from or through which any such person (or its agents, including the Paying Agent)makes any payment on this or any other Note (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to any successor(s) theretotax.
Appears in 1 contract
Additional Amounts. (a) All payments made by or on behalf of the Company under or with respect to this Note under the Indenture Securities or pursuant by or on behalf of any Guarantor with respect to any Note Guarantee must shall be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxtaxes unless the withholding or deduction for, dutyor on account of, levysuch taxes is then required by law. If any deduction or withholding for, impostor on account of, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) any taxes imposed or levied by or on behalf of any jurisdiction in which the (1) the United StatesCompany or any Guarantor is then incorporated, Germany, Luxembourg, the United Kingdom organized or resident for tax purposes or any political subdivision or governmental authority thereof or therein having the power to tax(each, (2a “Tax Jurisdiction”) will at any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered time be required to be a resident made from any payments made by or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made Company under or with respect to the Notes Securities or by or on behalf of any Note Guarantor with respect to any Guarantee, including payments of principal, redemption price, purchase price, interest or premium, the Issuer Company or such the relevant Guarantor, as the case may beapplicable, will be required to shall pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so in order that the net amount (including Additional Amounts) amounts received in respect of such payments by each holder Holder of Securities after such withholding or deduction (including any such withholding or deduction on from such Additional Amounts) will not be less than equal the amount such holder respective amounts that would have been received if in respect of such Taxes had not been withheld payments in the absence of such withholding or deducteddeduction; provided, however, that no Additional Amounts will shall be payable with respect to payments made to to:
(i) any holder taxes, to the extent such Taxes are taxes would not have been imposed by reason but for the existence of any present or former connection between the Holder (ior between a fiduciary, settler, beneficiary, member or shareholder of, or possessor of a power over, the relevant Holder, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) such holder or the beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, of the Securities and the relevant Tax Jurisdiction (other than by the acquisition, ownership, mere holding or disposition of this Notesuch note, the enforcement of rights under this Note such note or under any Note Guarantee a guarantee or the receipt of any payments in respect of this Note such note or any Note Guaranteea guarantee), or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior being or having been a citizen or a resident of such Tax Jurisdiction, being or having been engaged in a trade or business in such Tax Jurisdiction or having or having had a permanent establishment in such Tax Jurisdiction);
(ii) any taxes, to the receipt extent such taxes were imposed as a result of the presentation of a note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the note been presented on the last day of such 30‑day period);
(iii) any payment estate, inheritance, gift, sales, transfer, stamp, personal property, excise, wealth or similar taxes;
(iv) taxes imposed on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to a payment made to a Holder or beneficial owner of Securities who would have been able to avoid such withholding or deduction by presenting the relevant Securities to another Paying Agent;
(iv) any Tax taxes payable other than by deduction or withholding from payments under, or with respect to, the Securities or with respect to any Guarantee;
(vi) any U.S. taxes that are imposed on interest by as a result of the Holder or beneficial owner being or having been a controlled foreign corporation, personal holding company or passive foreign investment company with respect to the United States or a corporation that accumulates earnings to avoid United States federal income tax;
(vii) any political subdivision U.S. taxes imposed on any person that is, for U.S. federal income tax purposes, an individual who is a citizen or governmental authority resident of the United States, a corporation or partnership or other entity created or organized in or under the laws of the United States, any state thereof or therein by reason the District of Columbia or any estate or trust the income of which is subject to U.S. federal income taxation regardless of its source;
(viii) any U.S. backup withholding taxes;
(ix) any U.S. taxes that are imposed as a result of the Holder or beneficial owner holding being or owning, actually or constructively, 10% or more having been (i) a “10 per cent. shareholder” as defined in Section 871(h)(3) of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantorsuccessor provisions of the Code of the Company, (iiiii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit treated as receiving interest pursuant to a loan agreement entered into in the ordinary course of its trade or business as described in section 881(c)(3)(A) of the Code, or (iviii) a controlled foreign corporation within the meaning of section 957 of the Code that is related within the meaning of section 864(d)(4) of the Code to the Company;
(x) any taxes (i) if the Holder or beneficial owner would not have been liable for or subject to withholding or deduction of such taxes had it delivered an appropriate, valid and properly completed, United States federal Internal Revenue Service Form W-8 or Form W-9 (or any successor or substitute form) to any withholding agent or any other person; or (ii) to the extent such taxes are imposed, withheld or deducted by reason of the failure of the Holder or beneficial owner of Securities to comply with any reasonable written request of the Company, addressed to the Holder and made at least 30 days before any such withholding or deduction is to be made, to satisfy any certification, identification, information or other reporting requirements, whether required by statute, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Tax Jurisdiction);
(xi) any tax that is imposed pursuant on or with respect to FATCAany payment made to any Holder who is a fiduciary or partnership or an entity that is not the sole beneficial owner of such payment, to the extent that a beneficiary or settlor (vfor tax purposes) with respect to German tax residents such fiduciary, a member of such partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of the applicable Securities; or
(xii) any Tax withheld combination of items (i) through (xi) above.
(b) Notwithstanding any other provision herein, any payments made by or on behalf of the Company under or with respect to the Securities or by or on behalf of any Guarantor with respect to any Guarantee, shall be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the Code, or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, regulations, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a German custodian, who is required to deduct “FATCA Withholding”). Neither the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer Company or any Guarantor (as applicable) nor any other person shall be required to withhold pay any Taxes Additional Amounts in respect of any FATCA Withholding.
(c) In addition to the foregoing, the Company and any Guarantor shall also pay and indemnify the Holders and/or the Trustee for any present or future stamp, issue, registration, transfer, court or documentary taxes or any other similar taxes, charges or levies (including penalties and interest with respect thereto), which are levied by any Tax Jurisdiction on the execution, delivery, issuance, registration or enforcement of any of the Securities, the Indenture or any Guarantee, except for any such taxes imposed or levied as a result of a transfer after the Issue Date.
(d) If the Company or any Guarantor, as the case may be, becomes aware that it shall be obligated to pay Additional Amounts with respect to any payment under or with respect to the Securities or any Guarantee, the Company or the relevant Guarantor, as the case may be, shall deliver to the Trustee and Paying Agent on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises less than 30 days prior to that payment date, in which case the Company or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate shall also set forth any other information reasonably necessary to enable any Paying Agent to pay Additional Amounts to Holders on the relevant payment date. The Trustee and Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary.
(e) The Company or the relevant Guarantor shall make such withholding (or deduction cause to be made) all withholdings and deductions for, or on account of, taxes required by law and will remit (or cause to be remitted) the full amount deducted or withheld to the relevant tax authority as and when required in accordance with applicable law. The Issuer Company or any the relevant Guarantor (as applicable) will shall use commercially its reasonable efforts to obtain tax receipts from each tax authority evidencing the payment of any taxes so deducted or withheld. The Company or the relevant Guarantor shall furnish to the Trustee (or to a Holder upon written request), within a reasonable time after the date the payment of any taxes so deducted or withheld is made, certified copies of tax receipts evidencing the payment by the Issuer Company or the Guarantor, as the case may be, or if, notwithstanding such Guarantor entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments by such entity.
(as applicablef) of any Taxes so deducted Whenever in this Indenture or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the IndentureSecurities, this Note or any Note Guarantee there are is mentioned, in any context, (1) the payment of amounts based upon the principal amount of the Securities or of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on under, or with respect to this Note to, any of the Securities or any Note Guarantee, such reference mention shall be deemed to include mention of the payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made .
(unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. g) The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations described in this Paragraph 2 will Section 4.10 shall survive any termination, defeasance or discharge of the Indenture. References Indenture or any transfer by a Holder or beneficial owner of its Securities, and will apply, mutatis mutandis, to any jurisdiction in this Paragraph 2 which any successor Person to the Issuer Company or any Guarantor shall apply to is then incorporated, organized or resident for tax purposes or any successor(s) theretopolitical subdivision thereof or therein and such jurisdiction will be considered a Tax Jurisdiction.
Appears in 1 contract
Sources: Indenture (Amrize LTD)
Additional Amounts. All payments (a) Payments made by the Company under or with respect to this Note under the Indenture Notes or pursuant any of the Subsidiary Guarantors with respect to any Note Subsidiary Guarantee must shall be made free and clear of and without with- out withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other oth- er governmental charge (including penalties“Taxes”) unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, interest and other liabilities related thereto) or on account of, any Taxes imposed or levied by or on behalf of the (1) any jurisdiction in which the United StatesCompany or any Subsidiary Guarantor is at any relevant time orga- nized, Germany, Luxembourg, the United Kingdom engaged in business for tax purposes or resident for tax purposes or any political subdivision or governmental authority thereof there- of or therein having the power to tax, or (2) any jurisdiction from or through which payment on the Notes is made by or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer Com- pany or any Subsidiary Guarantor (including the jurisdiction of any paying agent) or any political subdi- vision thereof or therein (each, a Guarantor is so “Tax Jurisdiction”) will at any time be required to withhold or deduct any amount for or on account of Taxes be made from any payment payments made by the Company under or with respect to the Notes or any Note of the Subsidiary Guarantors with respect to any Subsidiary Guarantee, the Issuer Company or such the relevant Subsidiary Guarantor, as the case may beapplica- ble, will be pay to each Holder of Notes that are outstanding on the date of the required to pay payment, such amount addi- tional amounts (such amount the “Additional Amounts”) as may be necessary so that the net amount received by the appli- cable beneficial owner (including the Additional Amounts) received by each holder after such withholding or deduction (including any such withholding or deduction on such in respect of Additional Amounts) will not be less than equal the amount such holder benefi- cial owner would have received if such Taxes had not been withheld or deducted; provided, however, provided that no Additional Addi- tional Amounts will be payable with respect to payments made a payment to any holder to a Holder or beneficial owner of the extent Notes in respect of the following Taxes (“Excluded Taxes”):
(i) Canadian Taxes imposed because the Company does not deal at arm’s-length (within the meaning of the Income Tax Act (Canada)) with such Holder or beneficial owner at the time of making such payment,
(ii) Taxes are imposed by reason of (i) such holder Holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other relevant Tax Jurisdiction or any province or territory thereof otherwise than by the acquisition, ownership, mere holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee Notes or the receipt of payments in respect of this of, or enforcement of, such Note or a Subsidiary Guarantee,
(iii) Taxes payable as a result of such Holder’s or beneficial owner’s failure to com- ply with a timely request of the Company to comply with any Note Guaranteecertification, identification, docu- mentation or other reporting requirements if compliance is required by law, regulation, adminis- trative practice or an applicable treaty as a precondition to exemption from, or (ii) a reduction in the rate of deduction or withholding of, Taxes imposed by a relevant Tax Jurisdiction to which such holder Holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuerentitled,
(iv) estate, Guarantors inheritance, gift, sales, transfer or other applicable withholding agent to make or obtain authorization to make payments without such similar Taxes,
(v) Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note which the payment could have been made without deduction or any Note Guarantee a completewithholding for such Taxes if such Holder or beneficial owner had presented such Notes for payment within 30 days after the date on which such payment on such Notes became due and payable or the date on which payment thereof is duly provided for, correct and executed IRS Form W-8 whichever is later (except to the extent that such Holder or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no beneficial owner would have been entitled to Additional Amounts shall had such Notes been presented on the last day of such 30-day period),
(vi) Canadian Taxes imposed because such payment is deemed (under subsection 214(16) of the Income Tax Act (Canada)) to be payable with respect to (i) any Tax imposed on interest a dividend paid by the United States Company to such Holder or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding because such Holder or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person “specified shareholder” (within the meaning of Section 864(d)(4subsection 18(5) of the Internal Revenue Income Tax Act (Canada)),
(vii) any withholding or deduction imposed pursuant to Sections 1471 through 1474 of the Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantoramended or successor version that is substantively comparable and not materi- ally more onerous to comply with, (iii) any Tax imposed on interest by the United States current or future regulations or official interpretations thereof, and any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into pursuant to current Section 1471(b)(1) of the Code or any amended or successor provision that is substantively comparable and not materially more onerous to comply with, or
(viii) any combination of the Taxes described in the ordinary course of its trade above clauses in this proviso.
(b) If it is the applicable withholding agent, the Company or business or the relevant Subsidiary Guarantor shall also:
(ivi) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and deduction, and
(ii) remit the full amount deducted or withheld to the relevant authority as and when required in accordance accord- ance with applicable law. .
(c) The Issuer Company or the relevant Subsidiary Guarantor will furnish, within 30 days after the date on which the payment of any Guarantor (as applicable) will use commercially reasonable efforts Taxes is due pursuant to obtain certified applicable law, to the trustee on be- half of the Holders of Notes that are outstanding on the date of the required payment, copies of tax receipts re- ceipts, if any (or other documentation), evidencing the payment payments of Taxes made by the Issuer Company, or a Subsidiary Guarantor, as the case may be on behalf of the Holders or beneficial owners of the Notes. The Company and the Subsidiary Guarantors will indemnify and hold harmless each Holder (for itself and its applicable beneficial owners) and upon written request reimburse each such Guarantor Holder for the amount of:
(as applicablei) of any Taxes (other than Excluded Taxes) so deducted levied or withheld from each Relevant Taxing imposed by a relevant Tax Jurisdiction imposing and paid by such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note Holder or any Note Guarantee there are mentioned, in any context, (1) the payment beneficial owners as a result of principal, (2) purchase prices in connection with a purchase of Notes payments made under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note the Notes or any Note Subsidiary Guarantee,
(ii) any liability (including penalties, such reference shall be deemed interest and expense) arising therefrom or with respect thereto, and
(iii) any Taxes (other than Excluded Taxes) imposed by a relevant Tax Jurisdiction with respect to include payment of Additional Amounts as described any reimbursement under this heading clause (c)(i) or (ii) above. In addition to the extent thatforegoing, in such contextthe Company and the Subsidiary Guarantors will also pay and indemnify each Holder (for itself and its applicable beneficial owners) for any present or future stamp, Additional Amounts areissue, were registration, transfer, court or would be payable in documentary taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and any other liabilities related thereto) which are levied by any relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, this Indenture, any Subsidiary Guarantee or any other document referred to therein, or the receipt of any payments with respect thereof. thereto, or enforcement of, any of the Notes or any Subsidiary Guarantee.
(d) At least 30 days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on this Note with respect to the Notes is to be made due and payable (unless an such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer Company or a Subsidiary Guarantor will be becomes obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish Company or the relevant Subsidiary Guarantor, as applicable, shall deliver to the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating the fact that such Additional Amounts will shall be payable payable, and the amounts so payable, payable and will shall set forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders of the Notes on the payment date. The Issuer or a Guarantor Whenever in this Indenture there is men- tioned, in any context:
(as applicablei) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of principal (and premium, if any),
(ii) purchase prices in connection with a repurchase of Notes,
(iii) interest, or
(iv) any other amount payable on or with respect to any of the Notes or any Subsidi- ary Guarantee, such Additional Amounts. Copies of such documentation mention shall be made available deemed to include mention of the payment of Additional Amounts provided for in this Section 4.19 to the holders upon request. extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The foregoing obligations in this Paragraph 2 Section 4.19 will survive any termination, defeasance or discharge of the this Indenture. References , any transfer by a Holder or beneficial owner of its Notes, and will apply, mu- ▇▇▇▇▇ mutandis, to any jurisdiction in this Paragraph 2 which any successor Person to the Issuer Company or any Guarantor shall apply to Subsidiary Guar- antor is organized, engaged in business for tax purposes or resident for tax purposes or any successor(sjurisdiction from or through which such Person makes any payment on the Notes (or any Subsidiary Guarantee) theretoor any political subdivision thereof or therein.
Appears in 1 contract
Sources: Indenture
Additional Amounts. (a) All payments made amounts paid or credited by the Company under or with respect to this Note the Notes will be made net of any withholding or deduction for or on account of any present or future Taxes imposed or levied by or on behalf of the government of Canada, any province or territory of Canada or any political subdivision or any authority or agency therein or thereof having power to tax, or any jurisdiction in which the Company is organized, resident, or doing business for tax purposes, or from or through which the Company (or its agents) makes any payment on the Notes, or any taxing authority thereof, and the Company will not be required to pay any additional amounts to Holders in respect of any Taxes to the extent that such Taxes at any time become payable.
(b) All payments made by or on behalf of any Guarantor (each such payor, a “Payor”) under the Indenture or pursuant with respect to any Note Guarantee must Guarantee, are required to be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) Taxes imposed or levied by or on behalf of the (1) the United Statesgovernment of Canada, Germany, Luxembourg, the United Kingdom any province or territory of Canada or any political subdivision or governmental any authority or agency therein or thereof or therein having the power to tax, (2) or any other jurisdiction in which such Guarantor is organized, is carrying on business in for tax purposes, or is otherwise resident for tax purposes or any jurisdiction from or through which payment on is made (including the Notes or jurisdiction of any Note Guarantee is madepaying agent) (each, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent such Payor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. thereof.
(c) If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor any Payor is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any a Note Guarantee, the Issuer or such Guarantor, as the case may be, Payor will be required to pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so that the net amount received by a Holder or a Beneficial Holder of Notes (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder Holder or Beneficial Holder of Notes would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to Taxes payable by virtue of: (1) the extent applicable Payor does not deal at arm’s length (within the meaning of the Tax Act) with such Taxes are imposed by reason Holder or Beneficial Holder at the time of the payment; (i2) such holder Holder or beneficial owner Beneficial Holder being considered to be either (a) a “specified non- resident shareholder” of the Company or to have been connected a relevant Guarantor or (b) a non-resident person who does not deal at arm’s length with a specified shareholder of the Company or a Guarantor, in each case for purposes of subsection 18(5) of the Tax Act; (3) any connection between such Holder or Beneficial Holder of Notes and the Relevant Taxing Jurisdiction, Jurisdiction other than by a connection resulting from the mere acquisition, ownership, holding or disposition of this Noteof, or the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this of, any Notes or Note Guarantees or any Note Guarantee, or beneficial interests therein; (ii4) such holder Holder or beneficial owner not completing any procedural formalities that it Beneficial Holder failing to duly and timely comply (where such Holder or Beneficial Holder is legally eligible to complete and are necessary for do so) with a timely request of the IssuerCompany to comply with information, Guarantors documentation, certification or other evidentiary requirements concerning such Holder’s or Beneficial Holder’s nationality, residence, entitlement to treaty benefits, identity or connection with the Relevant Taxing Jurisdiction, if and to the extent that due and timely compliance with such request would have resulted in the reduction or elimination of any Taxes as to which Additional Amounts would have otherwise been payable to such Holder or Beneficial Holder of Notes but for this clause (4), and provided that the Company provides written notice of such requirement to the applicable withholding agent to make Holder or obtain authorization to make payments without such Taxes Beneficial Holder of at least thirty (including, without limitation, providing 30) days prior to the receipt date of the payment in respect of which Additional Amounts would be payable; (5) such Holder or Beneficial Holder being a fiduciary, a partnership or not the beneficial owner of any payment on or in respect of this Note or any Note Guarantee a completeNote, correct if and executed IRS Form W-8 or W-9 or substitute or successor formto the extent that, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Furtherresult of an applicable tax treaty, no Additional Amounts shall be would have been payable had the beneficiary, partner or beneficial owner owned the Note directly (but only if there is no material cost or expense associated with transferring such Note to such beneficiary, partner or beneficial owner and no restriction on such transfer that is outside the control of such beneficiary, partner or beneficial owner); (6) such Tax being an estate inheritance, gift, sales, transfer or personal property Tax or any similar Tax with respect to a Note, or (i7) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more combination of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled foregoing clauses (1) to vote(6), (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986Taxes, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into other than Taxes described in the ordinary course of its trade or business or foregoing clauses (iv1) through (7) above, being “Indemnified Taxes”).
(d) The applicable Payor shall make any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer Upon request, the Company shall provide the Trustee with official receipts or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts other documentation evidencing the payment of the Taxes with respect to which Additional Amounts are paid. Each Guarantor will indemnify and hold harmless each Holder and Beneficial Holder for the amount of (1) any Indemnified Taxes not withheld or deducted by the Issuer or such Guarantor (and levied or imposed and paid by such Holder or Beneficial Holder as applicable) a result of any Taxes so deducted payments made under or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies with respect to the Trustee. Wherever Note Guarantees, (2) any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, and (3) any Indemnified Taxes imposed with respect to any reimbursement under Section 2.13(c)(1) or Section 2.13(c)(2) above.
(e) If a Payor is or will become obligated to pay Additional Amounts under or with respect to any payment made on a Note Guarantee, then at least thirty (30) days prior to the date of such payment (or, if such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, promptly after the date that the obligation to pay Additional Amount arises), such Payor will deliver to the Trustee an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount so payable and such other information necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date.
(f) Whenever in the Indenture, this Note or any Note Guarantee Indenture there are mentioned, is mentioned in any context, : (1) the payment of principal, ; (2) redemption prices or purchase prices in connection with a redemption or purchase of Notes under the Indenture or this Note, Notes; (3) interest interest; or (4) any other amount payable on or with respect to this Note any of the Notes or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on .
(g) The obligations described under this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 heading will survive any termination, defeasance or discharge of the Indenture. References this Indenture and any transfer by an applicable Holder or Beneficial Holder of Notes to another applicable Holder or Beneficial Holder, and will apply, mutatis mutandis, to any jurisdiction in this Paragraph 2 which any successor to the Issuer Company or any Guarantor shall apply to is incorporated, engaged in business for tax purposes or resident for tax purposes, or any successor(s) theretojurisdiction from or through which such successor makes any payment on a Note Guarantee and, in each case, any department or political subdivision thereof or therein.
Appears in 1 contract
Sources: Trust Indenture
Additional Amounts. All payments made under or with (a) With respect to this Note under the Indenture any series of Notes, if any deduction or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxtaxes, dutyduties, levyassessments or governmental charges of whatever nature (collectively, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto“Taxes”) imposed or levied by or on behalf of (i) any jurisdiction in which the (1) the United States, Germany, Luxembourg, the United Kingdom Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority thereof or therein having the power to tax, or (2ii) any jurisdiction from or through which payment on the Notes of such series or any Note Guarantee of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (i) and (ii), a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is shall at any time be required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment payments made under or with respect to the Notes of such series or any Note Guaranteethe Guarantees, including payments of principal, Redemption Price, interest or premium, if any, the Issuer Payor or such the relevant Guarantor, as applicable, shall pay (together with such payments) such additional amounts pursuant to Paragraph 2 of the case may be, will be required to pay such amount Notes (such amount the “Additional Amounts”).
(b) as may be necessary so that the net amount (including Additional Amounts) received by The Payor and each holder after such withholding Guarantor or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of successor Guarantor shall (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under make any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority as and when required Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or any Upon written request, the Payor and each Guarantor (as applicable) will shall use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to each Holder. The Payor and each Guarantor or successor Guarantor shall attach to each certified copy a certificate stating (x) that the amount of withholding Taxes evidenced by the certified copy was paid in connection with payments in respect of the principal amount of Notes then outstanding and (y) the amount of such withholding Taxes paid per $1,000 principal amount of the Notes.
(c) At least 10 days prior to the first date on which payment of principal, premium, if any, or interest on the Notes of any series or the Guarantees is to be made, and at least 10 days prior to any subsequent such date if there has been any change with respect to the matters set forth in the Officers’ Certificate described in this Section 4.7, the Issuer shall furnish the Trustee and the Paying Agent, if other than the Trustee. , with an Officers’ Certificate instructing the Trustee and the Paying Agent that such payment of principal, premium, if any, or interest on the Notes (whether or not in the form of Definitive Notes) or any Guarantee shall be made to the Holders with withholding or deduction (but only in case such payment shall be made with such withholding or deduction) for, or on account of, Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction.
(d) Wherever in this Indenture or the Indenture, this Note or any Note Guarantee Notes of such series there are mentioned, in any context, (1i) the payment of principal, (2ii) purchase prices in connection with a purchase of Notes under the Indenture or this NoteNotes, (3iii) interest or (4iv) any other amount payable on or with respect to this Note the Notes of such series or any Note Guaranteethe Guarantees, such reference shall be deemed to include payment of Additional Amounts as described under in this heading Indenture and such Notes to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made .
(unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it e) The Issuer shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish indemnify the Trustee and the Paying AgentAgent for, if other than the Trusteeand hold them harmless against, any loss, liability or expense incurred without negligence, willful default or fraud on their part arising out of or in connection with an actions taken or omitted by any of them in reliance on any Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary furnished to enable the Trustee or the Paying Agent them pursuant to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor this Section 4.7.
(as applicablef) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, Obligations under this Section 4.7 shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the this Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) thereto.
Appears in 1 contract
Sources: Indenture (Smurfit Westrock PLC)
Additional Amounts. All payments made under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of (a) If any present or future taxtaxes, dutyduties, levyassessments or governmental charges of whatever nature and any related interest, impost, assessment surcharges or other governmental charge penalties with respect thereto (including penalties, interest and other liabilities related thereto“Taxes”) are imposed or levied by or on behalf of a Relevant Tax Jurisdiction on Purchaser or payments made by Shareholder to Purchaser under this Agreement, including, but not limited to, deliveries of ADSs or other Exchange Property under this Agreement, Shareholder will reimburse Purchaser for such additional amounts (the “Additional Amounts”) as will be necessary (1including after the imposition or levy of Taxes on any such Additional Amounts by the Relevant Tax Jurisdiction) in order that the amount available to Purchaser for distribution to holders and beneficial owners of the Trust Securities is no less than the amount Purchaser would have had available for distribution to holders and beneficial owners of the Trust Securities in the absence of such imposition or levy of Taxes by the Relevant Tax Jurisdiction.
(b) Shareholder will (i) pay, and (where applicable) reimburse Purchaser for any Documentary Taxes imposed by any tax jurisdiction on the receipt of ADSs or other Exchange Property by Purchaser and (ii) reimburse Purchaser for any Documentary Taxes for which Purchaser is obligated to reimburse a holder or beneficial owner of a Trust Security under Section 3.5 of the Trust Agreement.
(c) Subject to Section 6.8(d), the applicable party shall remit the full amount of Taxes imposed or levied to the applicable tax jurisdiction in accordance with Applicable Law. Such party shall provide certified copies of tax receipts from such tax jurisdiction evidencing the payment of such Taxes, or if such tax receipts are not available, certified copies or other reasonable evidence of such payments as soon as reasonably practicable to Shareholder or Purchaser, as applicable. Such copies shall be made available to the holders and beneficial owners of Trust Securities upon reasonable request and will be made available at the offices of the Paying Agent.
(d) Purchaser shall not withhold, deduct or pay any amounts that would obligate Shareholder to reimburse Purchaser pursuant to Section 6.8(a) or (b) and would result in a Triggering Shareholder Reimbursement Obligation unless (i) Purchaser receives a notice from any Governmental Body that such Governmental Body intends to imminently commence, or has commenced, enforcement or collection proceedings against Purchaser with respect to such amounts, including placing any lien on, or other financial impairment of, this Agreement or any other property held by Purchaser, (ii) Purchaser receives a Tax Opinion reasonably acceptable to Shareholder to the effect that such withholding, deduction or payment should be required under Applicable Law, (iii) there is a Final Determination with respect to such withholding, deduction or payment, or (iv) Shareholder consents to such withholding, deduction, or payment.
(e) If Purchaser withholds, deducts or pays (or is obligated to withhold, deduct or pay) any amounts that obligate Shareholder to reimburse Purchaser pursuant to Section 6.8(a) or (b), Shareholder shall satisfy any such reimbursement obligation no later than the later of (i) ten (10) Business Days after Shareholder is notified that such withholding, deduction or payment is permitted pursuant to Section 6.8(d) or (ii) five (5) Business Days prior to the due date for such reimbursable Taxes. Purchaser shall return to Shareholder any amounts paid under Section 6.8(a) or (b) that are not paid to (or are refunded by) the United States, Germany, Luxembourg, applicable Governmental Body. Shareholder will have the United Kingdom or right to pursue a refund claim in respect of any political subdivision or governmental authority thereof or therein having the power to tax, (2amounts that are paid by Purchaser under Section 6.8(a) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3b).
(f) The foregoing obligations will survive any other termination or discharge of this Agreement or the Trust Securities, any transfer by a holder or beneficial owner of Trust Securities, and, in addition to the Cayman Islands and the People’s Republic of China, will apply mutatis mutandis to any jurisdiction in which any successor to the payor Company is organized or otherwise considered to be a resident or organized, engaged in business for tax purposes or otherwise resident for tax purposes, or any political subdivision or governmental taxing authority or agency thereof or therein having therein, and any such jurisdiction thereafter will be included in the power to tax (each a definition of “Relevant Taxing Tax Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the “Additional Amounts”) as may be necessary so ; provided that the net amount (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, however, that in no event shall Additional Amounts will be payable with in respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing JurisdictionTaxes, other than by the acquisitionDocumentary Taxes, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental taxing authority or agency thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) theretotherein.
Appears in 1 contract
Sources: Forward Purchase Agreement (Mandatory Exchangeable Trust)
Additional Amounts. All payments made under or This Section 6.5 shall replace Section 1010 of the Base Indenture with respect to this Note under the Indenture or pursuant to any Note Guarantee must Notes only.
(a) Payments made by each Subsidiary Guarantor and each Future Guarantor that is a Foreign Subsidiary, if any, in respect of their respective Guarantees will be made free and clear of of, and without deduction or withholding or deduction for or on account of for, any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant such Subsidiary Guarantor or other applicable withholding agent Future Guarantor, as applicable, is required to deduct or withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuerapplicable law.
(b) If, a pursuant to Section 6.5(a), any Subsidiary Guarantor or other any Future Guarantor that is a Foreign Subsidiary is required by applicable withholding agent making a payment on behalf of the Issuer law to deduct or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note its Guarantee, the Issuer such Subsidiary Guarantor or such Guarantor, as the case may be, will be required to Future Guarantor shall pay such amount (such amount the “Additional Amounts”) additional amounts as may be necessary so that the net amount (including Additional Amounts) received sum payable by each holder such Subsidiary Guarantor or Future Guarantor is increased as necessary so that, after such deduction or withholding has been made, each Holder or deduction (including any withholding or deduction on such Additional Amounts) will not be less than beneficial owner of the Notes receives an amount such holder equal to the sum it would have received if had no such Taxes had not deduction or withholding been withheld or deductedmade (“Additional Amounts”); provided, however, provided that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes Taxes:
(1) that are imposed by reason as a result of (i) such holder the Holder or beneficial owner of the Notes being considered to be organized under the laws of, or to have been connected with having its principal office in, the jurisdiction imposing such Tax (or any political subdivision thereof);
(2) that are imposed as a Relevant Taxing Jurisdiction, result of a present or former connection between the Holder or beneficial owner of the Notes and the jurisdiction imposing such Tax;
(3) payable other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of withholding from payments in respect of this Note the Guarantee of such Subsidiary Guarantor or Future Guarantor;
(4) that would not have been imposed but for the failure of the applicable recipient of such payment to comply with any Note Guaranteecertification, identification, information, documentation or other reporting requirement to the extent:
(A) such compliance is required by applicable law or administrative practice or an applicable treaty as a precondition to exemption from, or reduction in, the rate of deduction or withholding of such Taxes; and
(iiB) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for at least 30 days before the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any first payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable date with respect to which such Additional Amounts or Taxes shall be payable, such Subsidiary Guarantor or Future Guarantor has notified such recipient in writing that such recipient is required to comply with such requirement;
(i5) any Tax that are imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled withheld pursuant to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) ), as of the issue date of the Notes (or any amended or successor version of such sections), any regulations promulgated thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the Issuer foregoing or any Guarantor, agreements entered into pursuant to Section 1471(b)(1) of the Code; or
(iii6) any Tax imposed on interest by combination of the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant foregoing subsections 6.5(b)(1) to a loan agreement entered into 6.5(b)(5). All references in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant Indenture to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principalprincipal of, and premium, if any, and interest on, the Notes (2and similar phrases) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference payment made by any Subsidiary Guarantor or any Future Guarantor that is a Foreign Subsidiary under its Guarantee shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such that context, Additional Amounts are, were or would be payable payable. Notwithstanding anything to the contrary in respect thereof. At least 30 days prior to each date on which payment of principalthe Indenture, premiumin no event shall the Issuer, the Parent Guarantors, or any Future Guarantor that is a Domestic Subsidiary be obligated, directly or indirectly, for Additional Amounts, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) thereto.
Appears in 1 contract
Sources: First Supplemental Indenture (Americold Realty Trust)
Additional Amounts. (a) All payments made that the Issuers make under or with respect to this Note the Notes or that the Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom any jurisdiction in which any Issuer or any political subdivision Guarantor is organized or governmental authority thereof is a resident for tax purposes or therein having the power to tax, (2) any jurisdiction from or through which any of the foregoing makes any payment on the Notes or any Note Guarantee is made, or by or within any department or political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposeseach, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectivelyunless such Issuer or such Guarantor, “Taxes”as the case may be, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the an Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note GuaranteeNotes, the such Issuer or such Guarantor, as the case may be, will be required to pay such amount additional amounts in cash (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder Holder of the Notes after such withholding or deduction (including any withholding or deduction on such attributable to Additional AmountsAmounts payable hereunder) will not be less than the amount such holder the Holder would have received if such Taxes had not been withheld or deducted; provided.
(b) Notwithstanding the foregoing, however, that no none of the Issuers nor any Guarantor will pay Additional Amounts will be payable with respect to payments made to any holder a Holder or beneficial owner of Notes:
(i) to the extent the Taxes giving rise to such Taxes are Additional Amounts would not have been imposed but for the Holder’s or beneficial owner’s present or former connection with the Relevant Taxing Jurisdiction (other than a connection arising by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition Disposition of this Note, the Notes or by reason of the receipt of payments thereunder or under any Guarantee or the exercise or enforcement of rights under this Note any Notes or the Indenture or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or );
(ii) to the extent the Taxes giving rise to such holder Additional Amounts would not have been imposed but for the failure of the Holder or beneficial owner not completing of Notes, following any procedural formalities that it Issuer’s written request addressed to the Holder, to the extent such Holder or beneficial owner is legally eligible entitled to complete and are necessary for the Issuerdo so, Guarantors to comply with any certification, identification, information or other applicable reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding agent to make or obtain authorization to make payments without such of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior to a certification that the receipt of any payment on Holder or beneficial owner is not resident in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another the Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with ;
(iii) in respect to (i) of any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more withheld pursuant to Sections 1471 through 1474 of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), as of the date of the indenture (or any amended or successor version of such sections that is substantively comparable), current or future Treasury Regulations issued thereunder or any official interpretation thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code as of the date of the indenture (or any amended or successor version described above), and any intergovernmental agreement (or related governmental regulations, rules or official administrative practices) implementing the foregoing;
(iv) with respect to the Issuer any estate, inheritance, gift, sales, transfer or personal property tax or any Guarantor, similar Taxes;
(iiiv) any Tax if such Holder is a fiduciary or partnership or person other than the sole beneficial owner of such payment and the Taxes giving rise to such Additional Amounts would not have been imposed on interest such payment had such Holder been the beneficiary, partner or sole beneficial owner, as the case may be, of such Note (but only if there is no material cost or expense associated with transferring such Note to such beneficiary, partner or sole beneficial owner and no restriction on such transfer that is outside the control of such beneficiary, partner or sole beneficial owner);
(vi) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the presentation by the United States or any political subdivision or governmental authority thereof or therein by reason Holder of any beneficial owner being Note, where presentation is required, for payment on a bank extending credit pursuant to a loan agreement entered into in date more than 30 days after the ordinary course of its trade date on which payment became due and payable or business or the date on which payment thereof is duly provided for whichever occurs later; and
(iv) any United States federal tax imposed pursuant to FATCA, (vvii) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct combination of the withholding tax from such interest payments, provided that this Note is held in custody with such German custodianitems listed above. The Issuer or any Guarantor Issuers and the Guarantors will (as applicablei) required to withhold any Taxes will make such withholding or deduction required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) Issuers and the Guarantors will use commercially make reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes Taxes. The Issuers and the Guarantors will provide such certified copies to the Trustee. Wherever in , within a reasonable time after the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) date the payment of principalany Taxes so deducted or withheld are due pursuant to applicable law, (2) purchase prices in connection with either a purchase certified copy of Notes under tax receipts evidencing such payment, or, if such tax receipts are not reasonably available to the Indenture Issuers or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guaranteesuch Guarantor, such reference shall be deemed to include other documentation that provides reasonable evidence of such payment of Additional Amounts as described under this heading to by the extent that, in Issuers or such context, Additional Amounts are, were or would be payable in respect thereof. Guarantor.
(c) At least 30 calendar days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on this Note with respect to the Notes is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer Issuers or a any Guarantor will be obligated to pay Additional Amounts with respect to any such paymentpayment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it will be promptly thereafter), the Issuer Issuers will promptly furnish deliver to the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer or Issuers shall promptly publish a Guarantor (as applicable) will pay to the Trustee or the Paying Agent notice in accordance with Section 13.02 stating that such Additional Amounts andwill be payable and describing the obligations to pay such amounts. In addition, if paid the Issuers and the Guarantors will pay any present or future stamp, issue, registration, court, documentation, excise or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the execution, issue, registration or delivery of the Notes or any Guarantee or any other document or instrument referred to thereunder and any such taxes, charges or duties imposed by any jurisdiction as a Paying Agent result of, or in connection with, the enforcement of the Notes or any Guarantee and/or any other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. document or instrument.
(d) The foregoing obligations in this Paragraph 2 will provisions shall survive any termination, defeasance or discharge of the Indenture and shall apply mutatis mutandis to any jurisdiction in which any Surviving Entity (as defined in Section 5.01(a)(i)) is organized or resident for tax purposes or any jurisdiction from or through which payment is made by such Surviving Entity.
(e) Whenever the Indenture or the Notes refer to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note, such reference shall be deemed to include mention of the payment of Additional Amounts or indemnification payments as described hereunder, to the extent that in such context Additional Amounts or indemnification payments are, were or would be payable in respect thereof pursuant to Section 4.12 of the Indenture. References .
(f) The Issuers and the Guarantors, jointly and severally, will indemnify and hold harmless the Holders of Notes, and, upon written request of any Holder of Notes, reimburse such Holder for the amount of (i) any Taxes levied or imposed by a Relevant Taxing Jurisdiction and payable by such Holder in connection with payments made under or with respect to the Notes held by such Holder or any Guarantees; and (ii) any Taxes levied or imposed by a Relevant Taxing Jurisdiction with respect to any reimbursement under the foregoing clause (i) or this clause (ii), so that the net amount received by such ▇▇▇▇▇▇ after such reimbursement will not be less than the net amount such Holder would have received if the Taxes giving rise to the reimbursement described in clauses (i) and/or (ii) had not been imposed; provided, however, that the indemnification obligation provided for in this Paragraph 2 paragraph shall not extend to Taxes imposed for which the eligible Holder of the Notes would not have been eligible to receive payment of Additional Amounts pursuant to exceptions (b)(i) through (vii) above or to the Issuer or any Guarantor shall apply extent such Holder received Additional Amounts with respect to any successor(s) theretosuch payments.
Appears in 1 contract
Sources: Indenture (Transact LTD)
Additional Amounts. All payments made under or with (a) With respect to this Note under the Indenture any series of Notes, if any deduction or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxtaxes, dutyduties, levyassessments or governmental charges of whatever nature (collectively, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto“Taxes”) imposed or levied by or on behalf of (i) any jurisdiction in which the (1) the United States, Germany, Luxembourg, the United Kingdom Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority thereof or therein having the power to tax, or (2ii) any jurisdiction from or through which payment on the Notes of such series or any Note Guarantee of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (i) and (ii), a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is shall at any time be required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment payments made under or with respect to the Notes of such series or any Note Guaranteethe Guarantees, including payments of principal, Redemption Price, interest or premium, if any, the Issuer Payor or such the relevant Guarantor, as applicable, shall pay (together with such payments) such additional amounts pursuant to Paragraph 2 of the case may be, will be required to pay such amount Notes (such amount the “Additional Amounts”).
(b) as may be necessary so that the net amount (including Additional Amounts) received by The Payor and each holder after such withholding Guarantor or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of successor Guarantor shall (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under make any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority as and when required Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or any Upon written request, the Payor and each Guarantor (as applicable) will shall use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to each Holder. The Payor and each Guarantor or successor Guarantor shall attach to each certified copy a certificate stating (x) that the amount of withholding Taxes evidenced by the certified copy was paid in connection with payments in respect of the principal amount of Notes then outstanding and (y) the amount of such withholding Taxes paid per $1,000 principal amount of the Notes.
(c) At least 10 days prior to the first date on which payment of principal, premium, if any, or interest on the Notes of any series or the Guarantees is to be made, and at least 10 days prior to any subsequent such date if there has been any change with respect to the matters set forth in the Officers’ Certificate described in this Section 4.7, the Issuer shall furnish the Trustee and the Paying Agent, if other than the Trustee. , with an Officers’ Certificate instructing the Trustee and the Paying Agent that such payment of principal, premium, if any, or interest on the Notes (whether or not in the form of Definitive Notes) or any Guarantee shall be made to the Holders with withholding or deduction (but only in case such payment shall be made with such withholding or deduction) for, or on account of, Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction.
(d) Wherever in this Indenture or the Indenture, this Note or any Note Guarantee Notes of such series there are mentioned, in any context, (1i) the payment of principal, (2ii) purchase prices in connection with a purchase of Notes under the Indenture or this NoteNotes, (3iii) interest or (4iv) any other amount payable on or with respect to this Note the Notes of such series or any Note Guaranteethe Guarantees, such reference shall be deemed to include payment of Additional Amounts as described under in this heading Indenture and such Notes to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made .
(unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it e) The Issuer shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish indemnify the Trustee and the Paying AgentAgent for, if other than the Trusteeand hold them harmless against, any loss, liability or expense incurred without gross negligence, willful default or fraud on their part arising out of or in connection with an actions taken or omitted by any of them in reliance on any Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary furnished to enable the Trustee or the Paying Agent them pursuant to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor this Section 4.7.
(as applicablef) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, Obligations under this Section 4.7 shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the this Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) thereto.
Appears in 1 contract
Sources: Indenture (Smurfit Kappa Acquisitions Unlimited Co)
Additional Amounts. All payments made under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, or interest or other amounts on this Note the Notes is to be made (unless an such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts pursuant to Paragraph 2 of the Notes (the “Additional Amounts”) with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders Holders upon request. The Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or expense incurred without negligence or willful misconduct on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished to them pursuant to this Section 4.12. The Issuer and each Guarantor (as applicable) will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer and each Guarantor (as applicable) will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copy to the Trustee. -41- If the Issuer or the Guarantors conduct business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than a Relevant Taxing Jurisdiction and, as a result, are required by the law of such Additional Taxing Jurisdiction to deduct or withhold any amount on account of taxes imposed by such Additional Taxing Jurisdiction from payments under the Notes which would not have been required to be so deducted or withheld but for such conduct of business in such Additional Taxing Jurisdiction, the Additional Amounts provision described above shall be considered to apply to such Holders as if references in such provision to “Taxes” included taxes imposed by way of deduction or withholding by any such Additional Taxing Jurisdiction (or any political subdivision thereof or taxing authority therein). The Issuer will pay any present stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in Luxembourg (or any political subdivision or governmental authority thereof or therein having the power to tax) from the execution, delivery and registration of Notes upon original issuance and initial resale of the Notes or any other document or instrument referred to therein, or in connection with any payment with respect to, or enforcement of, the Notes or any Note Guarantee or any other document or instrument referred to therein. If at any time the Issuer changes its place of organization to outside of Luxembourg or there is a new issuer organized outside of Luxembourg, the Issuer or new issuer, as applicable, will pay any stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in the jurisdiction in which the Issuer or new issuer is organized (or any political subdivision thereof or therein) and are payable by the Holders of the Notes in respect of the Notes or any Note Guarantee or any other document or instrument referred to therein under any law, rule or regulation in effect at the time of such change or thereafter. The foregoing obligations in of this Section 4.12 and Paragraph 2 of the Notes will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 Indenture and will apply mutatis mutandis to any successor Person to the Issuer or the Guarantors. Whenever in this Indenture or in the Notes or any Guarantor shall apply Note Guarantee there is mentioned, in any context, the payment of principal, purchase price, premium or interest, if any, or any other amount payable under or with respect to any successor(s) theretoNote, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 1 contract
Additional Amounts. All payments made under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing At least 10 days prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each first date on which payment of principal, premium, if any, or interest or other amounts on this Note the Notes is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day made, and at least 10 days prior to any subsequent such date, in which case it shall be promptly thereafter), date if the Issuer or a Guarantor will be obligated to pay Additional Amounts there has been any change with respect to any such paymentthe matters set forth in the Officers’ Certificate described in Section 4.20 of the Indenture, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, Book-Entry Depositary with an Officers’ Certificate stating that specifying whether such Additional Amounts will payment of principal, premium, if any, or interest on the Notes shall be payable made without withholding or deduction for, or on account of, any Taxes and the amount, if any, required to be withheld on such payments and the amount, if any, of additional amounts so payable, and will set forth such other information necessary net of amounts to enable which the Trustee Depositaries or the Paying Agent to pay such Additional Amounts owner of Book-Entry Interests is not entitled. The Book-Entry Depositary shall have no responsibility for determining whether a Depositary or any owner of a Book-Entry Interest is entitled to the holders payment of Additional Amounts, but shall be entitled to rely conclusively for this purpose on the payment dateOfficers’ Certificate or on certifications from any Depositary. The Issuer or a Guarantor (as applicable) will shall, prior to the date on which the Book-Entry Depositary is required to make such payment, pay to the Trustee or the Paying Agent such Book-Entry Depositary amounts equal to any Additional Amounts andpayable on such date by the Book-Entry Depositary under this Agreement. The Issuer shall indemnify the Book-Entry Depositary for, if and hold it harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by it in reliance on any Officers’ Certificate furnished to them pursuant to this Section 2.15 or failure to furnish any such Officers’ Certificate. Notwithstanding anything to the contrary provided above, the Book-Entry Depositary shall pay or cause to be paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment Additional Amounts only out of such Additional Amounts. Copies of such documentation funds that shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to received by it from the Issuer or any Guarantor shall apply to any successor(s) theretofor that purpose.
Appears in 1 contract
Sources: Euro Deposit and Custody Agreement (JSG Acquisitions I)
Additional Amounts. All payments made under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) thereto.
Appears in 1 contract
Additional Amounts. All If the Company (or a Guarantor, if any) is required by law to deduct or withhold taxes imposed by Bermuda or another Relevant Tax Jurisdiction on payments made under or with respect to this Note under the Indenture or pursuant Holders, it will pay to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is Holder so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the “Additional Amounts”) as entitled all additional amounts that may be necessary so that every Net Payment of interest, principal, premium or other amount on that Note or the net amount (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) guarantee will not be less than the amount such holder provided for in that Note or the Note Guarantee.
(a) The Company (and Guarantors, if any) will also indemnify and reimburse Holders for:
(1) Taxes (including any interest, penalties and related expenses) imposed on the Holders by a Relevant Tax Jurisdiction if and to the same extent that a Holder would have received been entitled to receive additional amounts if such Taxes the Company (or a Guarantor) had been required to deduct or withhold those taxes from payments on the Notes or the Note Guarantees; and
(2) Stamp, court, documentary or similar taxes or charges (including any interest, penalties and related expenses) imposed by a Relevant Tax Jurisdiction in connection with the execution, delivery, enforcement or registration of the Notes or the Note Guarantees or other related documents and obligations.
(b) The Company (or a Guarantor) will not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made pay additional amounts to any Holder for or on account of any of the following:
(1) Any tax, assessment or other governmental charge imposed solely because at any time there is or was a connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of or possessor of power over the relevant holder to if the extent such Taxes are imposed by reason of holder is an estate, nominee, trust, partnership, limited liability company, or corporation) and the Relevant Tax Jurisdiction imposing the tax (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the mere receipt of a payment or the acquisition, ownership, disposition or holding of, or disposition of this Note, the enforcement of rights under this under, a Note or under any the Note Guarantee or the receipt of payments in respect of this Note Guarantees);
(2) Any estate, inheritance, gift or any Note Guaranteesimilar tax, assessment or other governmental charge;
(ii3) Any tax, assessment or other governmental charge imposed solely because such holder Holder (or if such Holder is not the beneficial owner, the beneficial owner) fails to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with the taxing jurisdiction of such Holder or any beneficial owner not completing any procedural formalities that it of the Note, if compliance is legally eligible required by law or by an applicable income tax treaty to complete and are necessary for which the Issuerjurisdiction imposing the tax is a party, Guarantors as a precondition to an exemption from the tax, assessment or other applicable withholding agent governmental charge for which such Holder is ▇▇▇- gible and the Company has given the Holders at least 60 days’ notice that Holders will be required to make provide such information and identification;
(4) Any tax, assessment or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable other governmental charge with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any a Note Guarantee there are mentioned, in any context, (1) the presented for payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least more than 30 days prior to each after the date on which payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that such Holder of principal, premium, if any, interest or other the Note would have been entitled to additional amounts on this presenting the Note for payment on any date during the 30-day period; and
(5) Any withholding or deduction imposed on a payment to an individual that is required to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts pursuant to the holders European Union Directive on the payment date. The Issuer or a Guarantor (as applicable) will pay to taxation of savings income, which was adopted by the Trustee or the Paying Agent such Additional Amounts andECOFIN Council on June 3, if paid to a Paying Agent other than the Trustee2003, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply law implementing or complying with, or introduced in order to any successor(s) theretoconform to, such Directive.
Appears in 1 contract
Sources: Indenture (Aircastle LTD)
Additional Amounts. All (a) Unless otherwise provided pursuant to Section 301, all payments made by the Company or on the Company’s behalf under or with respect to any series of Securities issued under this Note under the Indenture or pursuant to any Note Guarantee must will be made free and clear of of, and without withholding or deduction for or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (collectively “Taxes”) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom Government of Canada or any political subdivision province or governmental authority territory thereof or by any authority or agency therein or thereof having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent Company is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. Relevant Taxing Jurisdiction.
(b) If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of such Taxes is required by any Relevant Taxing Jurisdiction to be withheld or deducted from any payment made under or with respect to the Notes or any Note GuaranteeSecurities, the Issuer or Company will pay to each Holder of such Guarantor, Securities as the case may be, will be required to pay additional interest such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each holder such Holder after such withholding or deduction (including and after deducting any withholding or deduction Taxes on such Additional Amounts) will not be less than the amount such holder Holder would have received if such Taxes had not been required to be withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts shall not apply to:
(1) any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, the relevant Holder, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction other than the receipt of such payment or the ownership or holding of or the execution, delivery, registration or enforcement of such Security;
(2) any payment made by the Company under or with respect to such Securities to a Holder where such Holder did not deal at arm’s length with the Company (within the meaning of the Income Tax Act (Canada) (the “Tax Act”)) at the time of the relevant payment;
(3) any Taxes that are assessed or imposed by reason of the holder being a “specified shareholder,” as defined in subsection 18(5) of the Tax Act, of the payer of the payments or not dealing at arm’s length (within the meaning of the Tax Act) with a “specified shareholder” of such payer;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge;
(5) any Taxes that are payable otherwise than by deduction or withholding from a payment of principal, premium, interest, or Additional Amounts on such Securities;
(6) any Taxes that would not have been so imposed but for the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the Holder thereof would have been entitled to Additional Amounts had the Securities been presented for payment on the last date during such 30 day period;
(7) any Taxes that would not have been so imposed or would have been imposed at a lower rate if the Holder of such Securities had provided to the Company, any information, certification, documentation or evidence required under applicable law, rules, regulations or generally published administrative practice of the Relevant Taxing Jurisdiction for such Taxes not to be imposed or to be imposed at a lower rate; provided that such information, certification, documentation or evidence is required by the applicable law, rules, regulations or generally published administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from or reduction in the requirement to deduct or withhold all or part of such Taxes and such information, certification, documentation or evidence is reasonably requested upon reasonable notice by the applicable payor;
(8) any Taxes that were imposed on a fiduciary, partnership or other entity that is not the sole beneficial owner of the payment, if the laws of the Relevant Taxing Jurisdiction require the payment to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such Additional Amounts had it been the holder; or
(9) any Taxes that would not have been so imposed but for any combination of the foregoing.
(c) In any event, no Additional Amounts will be payable with under the provisions described above in respect to payments made to of any holder to Securities in excess of the extent Additional Amounts which would be required if, at all relevant times, the Holder of such Securities were a resident of the United States and a qualifying person for purposes of the Canada-U.S. Income Tax Convention (1980), as amended, including any protocols thereto. As a result of the limitation on the payment of Additional Amounts discussed in the preceding sentence, the Additional Amounts received by certain holders of any Securities will be less than the amount of Taxes are imposed withheld or deducted, and, accordingly, the net amount received by reason such holders will be less than the amount such holders would have received had there been no such withholding or deduction in respect of Taxes.
(d) The Company will (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and of Taxes as is required under applicable law or the interpretation or administration thereof by the Relevant Taxing Jurisdiction, (ii) remit the full amount deducted or withheld to the relevant authority as and when required Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or any Guarantor law and (as applicableiii) will use commercially furnish to the Trustee and the Securities Administrator reasonable efforts to obtain certified copies evidence of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies Taxes.
(e) If the Company or the Guarantors are obligated to pay Additional Amounts with respect to any payment under or with respect to the Securities, the Company shall deliver to the Trustee, the Securities Administrator or any Paying Agent, an Officer’s Certificate stating the fact that such Additional Amounts shall be payable and the amounts so payable and shall set forth such other information necessary to enable the payment of such Additional Amounts to Holders of Securities on the payment date. Each such Officer’s Certificate shall be conclusively relied upon until receipt of a new Officer’s Certificate addressing such matters. To the extent permitted by law, neither the Trustee, nor the Securities Administrator shall have any obligation to determine or obtain knowledge of when Additional Amounts are paid or owed.
(f) Wherever in the Indenture, this Note or any Note Guarantee Indenture there are is mentioned, in any context, (1) the payment of principalprincipal (and premium, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Noteif any), (3) interest or (4) any other amount payable on under or with respect to this Note or any Note Guaranteea debt security, such reference shall mention will be deemed to include mention of the payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) thereto.
Appears in 1 contract
Sources: Indenture (Mineracao Maraca Industria E Comercio S.A.)
Additional Amounts. (a) All payments made that the Issuers make under or with respect to this Note the Notes or that the Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments by or on behalf of the any jurisdiction (1) other than the United States, Germanyany state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, Luxembourgresident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the United Kingdom Paying Agent) makes any payment on the Notes or by or within any department, political subdivision or governmental authority thereof of or therein in any of the foregoing having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant such Issuer or Guarantor or other applicable withholding agent agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the an Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note Guarantee, the such Issuer or such Guarantor, as the case may be, will be required to shall pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder beneficial owner of the Notes after such withholding or deduction (including any withholding or deduction on such in respect of any Additional Amounts) will not be less than the amount such holder the beneficial owner would have received if such Taxes had not been withheld or deducted; provided.
(b) None of the Issuers or Guarantors shall, however, that no pay Additional Amounts will be payable with in respect to payments made to or on account of:
(i) any holder Taxes, to the extent such Taxes are imposed or levied by a Relevant Taxing Jurisdiction by reason of (i) such holder the Holder’s or beneficial owner being considered to be owner’s present or to have been connected former connection with a such Relevant Taxing Jurisdiction, Jurisdiction (other than by the acquisitionmere receipt, ownership, holding or disposition of this Notethe Notes, or by reason of the receipt of any payments in respect of any Notes or any Guarantee, or the exercise or enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note Notes or any Note Guarantee, or );
(ii) any Taxes to the extent such Taxes are imposed or withheld by reason of the failure of the Holder or beneficial owner of the Notes, following the Issuers’ written request addressed to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements (to the extent such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for do so), whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the Issuerrate of deduction or withholding of, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior to a certification that the receipt of any payment on Holder or beneficial owner is not resident in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another the Relevant Taxing Jurisdiction). Further;
(iii) any estate, no Additional Amounts shall be inheritance, gift, sales, transfer, personal property or similar Taxes;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes or any Guarantee;
(iv) any Tax imposed on interest or with respect to any payment by any of the United States Issuers or any political subdivision Guarantors to the Holder if such Holder is a fiduciary or governmental authority thereof partnership or therein by reason of any Person other than the sole beneficial owner holding or owning, actually or constructively, 10% or more of such payment to the total combined voting power extent that such Taxes would not have been imposed on such payment had such beneficial owner been the holder of all classes of stock of the Issuer or any Guarantor entitled to vote, such Note;
(iivi) any Tax that is imposed on interest or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the United States relevant Notes to another paying agent in a member state of the European Union;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period);
(viii) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the European Council Directive 2003/48/EC or any political subdivision other Directive implementing the conclusions of the ECOFIN Council meetings of November 26 and 27, 2000 on the taxation of savings income or governmental authority any law implementing or complying with, or introduced in order to conform to, any such Directive;
(ix) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 as of the Issue Date (or therein by reason of any beneficial owner being a controlled foreign corporation amended or successor version that is a related person within the meaning of substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 864(d)(41471(b)(1) of the Internal Revenue Code of 1986, 1986 as amended of the Issue Date (the “Code”) with respect to the Issuer or any Guarantoramended or successor version described above), and including (iiifor the avoidance of doubt) any Tax imposed on interest by intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or foregoing; or
(ivx) any United States federal tax imposed pursuant to FATCAcombination of the foregoing.
(c) The Issuers and the Guarantors, if the applicable withholding agent, shall (vi) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor .
(as applicabled) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 calendar days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on this Note with respect to the Notes or any Guarantee is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer Issuers or a any Guarantor will shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or any such paymentGuarantee is due and payable, in which case it will be promptly thereafter), the Issuer will promptly furnish Issuers shall deliver to the Trustee and Trustee, with a copy to the Paying Agent, if other than the Trustee, with an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set setting forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including, without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (i) the execution, issue, delivery or registration of the Notes or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, the Notes or any Guarantee. Upon written request, any of the Issuers or a Guarantor (as applicable) will pay furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or Guarantor (as the Paying Agent case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02, in such Additional Amounts andform as provided in the normal course by the taxing authority imposing such Taxes. If, if paid notwithstanding the efforts of such Issuer or Guarantor to a Paying Agent obtain such receipts, the same are not obtainable, such Issuer or Guarantor will provide the Trustee or such Holder with other than evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, shall promptly the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee with documentation evidencing such information as may be reasonably available to such Issuer and the Guarantors (and not otherwise in the possession of the Trustee) to enable determination of the amount of any withholding Taxes attributable to any particular Holder(s).
(e) Whenever this Indenture or the Notes refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note (including payments thereof made pursuant to a Guarantee), such reference includes the payment of Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 , if applicable.
(f) This Section 4.12 will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction (other than the Indenture. References United States, any state thereof or the District of Columbia) in this Paragraph 2 which any successor Person to any of the Issuer Issuers or Guarantors is organized, resident or doing business for tax purposes or any Guarantor shall apply jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on the Notes (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to any successor(s) theretotax.
Appears in 1 contract
Sources: Indenture (Ardagh Group S.A.)
Additional Amounts. All payments made under or with respect to this Note under on the Indenture or pursuant to any Note Guarantee must Book-Entry Notes of a Series will be made free and clear of and without deduction or withholding or deduction for or on account of any present or future taxTaxes, dutyduties, levy, impost, assessment assessments or other governmental charge (including penalties, interest and other liabilities related thereto) imposed charges of whatever nature unless the withholding or levied deduction is then required by law. If any such deduction or on behalf of the (1) the United States, Germany, Luxembourg, withholding is required by the United Kingdom or any political subdivision or governmental taxing authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing JurisdictionTaxes”), collectively, “Taxes”, unless each owner of Book-Entry Notes of a Series so affected shall be entitled to receive from the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount Book-Entry Depositary additional amounts (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to the extent that such Taxes are imposed by reason of (i) such holder or beneficial owner being considered would be entitled to receive Additional Amounts under the Indenture to be determined by treating the owner of any Book-Entry Interest as a Holder or to have been connected with a Relevant Taxing Jurisdiction, other than by Beneficial Owner for purposes of Section 10.04 of the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing relevant Indenture). At least 10 days prior to the receipt first date on which withholding on account of any payment on Taxes would be required under applicable law or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At required pursuant to this Section 2.12 to be made, and at least 30 10 days prior to each any subsequent such date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts there has been any change with respect to any such paymentmatters, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, Book-Entry Depositary with an Officers’ Certificate stating that shall specify the amount, if any, required to be withheld on such payments to the Depositary and the amount of Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on Depositary, net of amounts to which the payment dateDepositary or any owner of such Book-Entry Interest is not entitled. The Issuer Book-Entry Depositary shall have no responsibility for determining whether the Depositary or any owner of a Guarantor (as applicable) will pay Book-Entry Interest is entitled to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation , but shall be made available entitled to rely conclusively for this purpose on the Officers’ Certificate or on certifications from the Depositary. Notwithstanding anything to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any terminationcontrary provided above, defeasance the Book-Entry Depositary shall pay or discharge cause to be paid Additional Amounts only out of the Indenture. References in this Paragraph 2 to funds that shall be received by it from the Issuer or any Guarantor shall apply to any successor(s) theretofor that purpose.
Appears in 1 contract
Additional Amounts. All payments made under The payment of Capital Payments on the Class B Preferred Securities, and any amount payable upon redemption thereof or with respect to this Note under the Indenture or pursuant to any Note Guarantee must in liquidation, shall be made free and clear of and without any deduction or withholding or deduction for or on account of any present or future taxtaxes, dutyduties or governmental charges of any nature whatsoever imposed, levy, impost, assessment levied or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied collected by or on behalf of the United States or Germany (1or any jurisdiction from which payments are made) the United Statesor, Germany, Luxembourgduring any period any Substitute Obligations are outstanding, the United Kingdom jurisdiction of residence of any obligor on such Substitute Obligations (or any jurisdiction from which payments are made) (each a “Relevant Jurisdiction”) or by or on behalf of any political subdivision or governmental authority therein or thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a collectively, “Relevant Taxing JurisdictionWithholding Taxes”), collectively, “Taxes”, unless the Issuer, relevant Guarantor such deduction or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencylaw. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note GuaranteeIn such event, the Issuer or Company shall pay as additional Capital Payments, such Guarantor, as the case may be, will be required to pay such amount additional amounts (such amount the “Additional Amounts”) to the Class B Preferred Securityholders as may be necessary so in order that the net amount (including Additional Amounts) amounts received by each holder the Class B Preferred Securityholders and the Trust Preferred Securityholders after such deduction or withholding for or deduction (including any withholding or deduction on such Additional Amounts) will not be less than account of Withholding Taxes shall equal the amount such holder amounts that otherwise would have been received if had no such Taxes had not deduction or withholding been withheld or deducted; required, provided, however, that no such Additional Amounts will shall be payable in respect of the Class B Preferred Securities
(i) if and to the extent that the Company is unauthorized to pay because such payment would exceed the Distributable Profits of the Bank for the preceding fiscal year (after subtracting from such Distributable Profits the aggregate amount of the Capital Payments on the Class B Preferred Securities and any capital payments or dividends on Preferred Tier I Securities, if any, already paid on the basis of such Distributable Profits on or prior to the date on which such Additional Amounts shall be payable);
(ii) with respect to payments made to any holder to the extent such Withholding Taxes that are imposed payable by reason of a Holder or beneficial owner of Class B Preferred Securities (other than the Trust) having some connection with any Relevant Jurisdiction other than by reason only of the mere holding or beneficial ownership of Class B Preferred Securities;
(iii) with respect to any Withholding Taxes which are deducted or withheld pursuant to (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note European Council Directive 2003/48/EC or any Note Guaranteeother European Union Directive or Regulation implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income, or (ii) such holder any international treaty or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary understanding entered into for the Issuer, Guarantors or other applicable withholding agent purpose of facilitating cooperation in the reporting and collection of savings income and to make or obtain authorization to make payments without such Taxes which (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (ix) any Tax imposed on interest by the United States States, and (y) the European Union or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that Germany is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986party, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States provision of law implementing, or any political subdivision complying with, or governmental authority thereof introduced to conform with, such Directive, Regulation, treaty or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or understanding; or
(iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by the extent such deduction or withholding can be avoided or reduced if the Holder or beneficial owner of Class B Preferred Securities makes a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer declaration of non-residence or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld other similar claim for exemption to the relevant tax authority as and when required in accordance or complies with applicable law. The Issuer any reasonable certification, documentation, information or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment other reporting requirement imposed by the Issuer relevant tax authority, provided, however, that the exclusion set forth in this clause (iv) shall not apply if certification, information, documentation or such Guarantor other reporting requirement would be materially more onerous (as applicable) in form, procedure or substance of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies information required to be disclosed), to the Trustee. Wherever in the Indenture, this Note Holder or any Note Guarantee there are mentioned, in any context, (1) the payment beneficial owner of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest Class B Preferred Securities than comparable information or other amounts on this Note is to be made reporting requirements imposed under U.S. tax law, regulation and administrative practice (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafteras IRS Forms W-8 and W-9), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) thereto.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Deutsche Bank Capital Funding Trust VIII)
Additional Amounts.
(a) All payments made amounts paid or credited by the Company under or with respect to this Note the Notes will be made net of any withholding or deduction for or on account of any present or future Taxes imposed or levied by or on behalf of the government of Canada, any province or territory of Canada or any political subdivision or any authority or agency therein or thereof having power to tax, or any jurisdiction in which the Company is organized, resident, or doing business for tax purposes, or from or through which the Company (or its agents) makes any payment on the Notes, or any taxing authority thereof, and the Company will not be required to pay any additional amounts to Holders in respect of any Taxes to the extent that such Taxes at any time become payable.
(b) All payments made by or on behalf of any Guarantor (each such payor, a “Payor”) under the Indenture or pursuant with respect to any Note Guarantee must Guarantee, are required to be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) Taxes imposed or levied by or on behalf of the (1) the United Statesgovernment of Canada, Germany, Luxembourg, the United Kingdom any province or territory of Canada or any political subdivision or governmental any authority or agency therein or thereof or therein having the power to tax, (2) or any other jurisdiction in which such Guarantor is organized, is carrying on business in for tax purposes, or is otherwise resident for tax purposes or any jurisdiction from or through which payment on is made (including the Notes or jurisdiction of any Note Guarantee is madepaying agent) (each, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent such Payor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. thereof.
(c) If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor any Payor is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any a Note Guarantee, the Issuer or such Guarantor, as the case may be, Payor will be required to pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so that the net amount received by a Holder or a Beneficial Holder of Notes (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder Holder or Beneficial Holder of Notes would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to Taxes payable by virtue of: (1) the extent applicable Payor does not deal at arm’s length (within the meaning of the Tax Act) with such Taxes are imposed by reason Holder or Beneficial Holder at the time of the payment; (i2) such holder Holder or beneficial owner Beneficial Holder being considered to be either (a) a “specified non- resident shareholder” of the Company or to have been connected a relevant Guarantor or (b) a non-resident person who does not deal at arm’s length with a specified shareholder of the Company or a Guarantor, in each case for purposes of subsection 18(5) of the Tax Act; (3) any connection between such Holder or Beneficial Holder of Notes and the Relevant Taxing Jurisdiction, Jurisdiction other than by a connection resulting from the mere acquisition, ownership, holding or disposition of this Noteof, or the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this of, any Notes or Note Guarantees or any Note Guarantee, or beneficial interests therein; (ii4) such holder Holder or beneficial owner not completing any procedural formalities that it Beneficial Holder failing to duly and timely comply (where such Holder or Beneficial Holder is legally eligible to complete and are necessary for do so) with a timely request of the IssuerCompany to comply with information, Guarantors documentation, certification or other evidentiary requirements concerning such Holder’s or Beneficial Holder’s nationality, residence, entitlement to treaty benefits, identity or connection with the Relevant Taxing Jurisdiction, if and to the extent that due and timely compliance with such request would have resulted in the reduction or elimination of any Taxes as to which Additional Amounts would have otherwise been payable to such Holder or Beneficial Holder of Notes but for this clause (4), and provided that the Company provides written notice of such requirement to the applicable withholding agent to make Holder or obtain authorization to make payments without such Taxes Beneficial Holder of at least thirty (including, without limitation, providing 30) days prior to the receipt date of the payment in respect of which Additional Amounts would be payable; (5) such Holder or Beneficial Holder being a fiduciary, a partnership or not the beneficial owner of any payment on or in respect of this Note or any Note Guarantee a completeNote, correct if and executed IRS Form W-8 or W-9 or substitute or successor formto the extent that, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Furtherresult of an applicable tax treaty, no Additional Amounts shall be would have been payable had the beneficiary, partner or beneficial owner owned the Note directly (but only if there is no material cost or expense associated with transferring such Note to such beneficiary, partner or beneficial owner and no restriction on such transfer that is outside the control of such beneficiary, partner or beneficial owner); (6) such Tax being an estate inheritance, gift, sales, transfer or personal property Tax or any similar Tax with respect to a Note, or (i7) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more combination of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled foregoing clauses (1) to vote(6), (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986Taxes, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into other than Taxes described in the ordinary course of its trade or business or foregoing clauses (iv1) through (7) above, being “Indemnified Taxes”).
(d) The applicable Payor shall make any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer Upon request, the Company shall provide the Trustee with official receipts or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts other documentation evidencing the payment of the Taxes with respect to which Additional Amounts are paid. Each Guarantor will indemnify and hold harmless each Holder and Beneficial Holder for the amount of (1) any Indemnified Taxes not withheld or deducted by the Issuer or such Guarantor (and levied or imposed and paid by such Holder or Beneficial Holder as applicable) a result of any Taxes so deducted payments made under or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies with respect to the Trustee. Wherever Note Guarantees, (2) any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, and (3) any Indemnified Taxes imposed with respect to any reimbursement under Section 2.13(c)(1) or Section 2.13(c)(2) above.
(e) If a Payor is or will become obligated to pay Additional Amounts under or with respect to any payment made on a Note Guarantee, then at least thirty (30) days prior to the date of such payment (or, if such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, promptly after the date that the obligation to pay Additional Amount arises), such Payor will deliver to the Trustee an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount so payable and such other information necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date.
(f) Whenever in the Indenture, this Note or any Note Guarantee Indenture there are mentioned, is mentioned in any context, : (1) the payment of principal, ; (2) redemption prices or purchase prices in connection with a redemption or purchase of Notes under the Indenture or this Note, Notes; (3) interest interest; or (4) any other amount payable on or with respect to this Note any of the Notes or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on .
(g) The obligations described under this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 heading will survive any termination, defeasance or discharge of the Indenture. References this Indenture and any transfer by an applicable Holder or Beneficial Holder of Notes to another applicable Holder or Beneficial Holder, and will apply, mutatis mutandis, to any jurisdiction in this Paragraph 2 which any successor to the Issuer Company or any Guarantor shall apply to is incorporated, engaged in business for tax purposes or resident for tax purposes, or any successor(s) theretojurisdiction from or through which such successor makes any payment on a Note Guarantee and, in each case, any department or political subdivision thereof or therein.
Appears in 1 contract
Sources: Trust Indenture
Additional Amounts. (a) All payments made that the Issuer makes under or with respect to this Note the Notes or that the Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of any jurisdiction in which the (1) the United States, Germany, Luxembourg, the United Kingdom Issuer or any political subdivision Guarantor is organized or governmental authority thereof is a resident for tax purposes or therein having the power to tax, (2) any jurisdiction from or through which any of the foregoing makes any payment on the Notes or any Note Guarantee is made, or by or within any department or political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposeseach, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the IssuerIssuer or such Guarantor, relevant Guarantor or other applicable withholding agent as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note GuaranteeNotes, the Issuer or such the Guarantor, as the case may be, will be required to shall pay such amount additional amounts in cash (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder Holder after such withholding or deduction (including any withholding or deduction on such attributable to Additional AmountsAmounts payable hereunder) will not be less than the amount such holder the Holder would have received if such Taxes had not been withheld or deducted; provided.
(b) Notwithstanding the foregoing, however, that each of the Issuer and the Guarantors shall pay no Additional Amounts will be payable with respect to payments made to a Holder or beneficial owner of any holder Note:
(i) to the extent the Taxes giving rise to such Taxes are Additional Amounts would not have been imposed but for the Holder’s or beneficial owner’s present or former connection with the Relevant Taxing Jurisdiction (other than a connection arising by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, Notes or by reason of the receipt of payments thereunder or under any Guarantee or the exercise or enforcement of rights under this Note any Notes or the Indenture or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or );
(ii) to the extent the Taxes giving rise to such holder Additional Amounts would not have been imposed but for the failure of the Holder or beneficial owner not completing any procedural formalities that it of Notes, following the Issuer’s written request addressed to the Holder, to the extent such Holder or beneficial owner is legally eligible entitled to complete and are necessary for the Issuerdo so, Guarantors to comply with any certification, identification, information or other applicable reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding agent to make or obtain authorization to make payments without such of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior to a certification that the receipt of any payment on Holder or beneficial owner is not resident in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another the Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to ;
(i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”iii) with respect to the Issuer any estate, inheritance, gift, sales, transfer or personal property tax or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or similar Taxes;
(iv) any United States federal tax if such Holder is a fiduciary or partnership or Person other than the sole beneficial owner of such payment and the Taxes giving rise to such Additional Amounts would not have been imposed pursuant on such payment had such Holder been the beneficiary, partner or sole beneficial owner, as the case may be, of such Note (but only if there is no material cost or expense associated with transferring such Note to FATCAsuch beneficiary, partner or sole beneficial owner and no restriction on such transfer that is outside the control of such beneficiary, partner or sole beneficial owner);
(v) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the presentation by the Holder of any Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(vi) with respect to German tax residents any Tax withheld by withholding or deduction that is imposed on a German custodian, who payment to an individual and that is required to deduct be made pursuant to the withholding tax from European Council Directive on the taxation of savings income which was adopted by the ECOFIN Council on June 3, 2003 or any law implementing or complying with, or introduced in order to conform to, such interest paymentsdirective (the “EU Savings Tax Directive”) or is required to be made pursuant to the Agreement between the European Community and the Swiss Confederation dated of October 26, provided that this Note is held 2004 providing for measures equivalent to those laid down in custody the EU Savings Tax Directive (the “EU-Swiss Savings Tax Agreement”) or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, such agreement; and
(vii) with such German custodianrespect to any combination of the items listed above. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will and the Guarantors shall also make such withholding or deduction of Taxes required by applicable law and remit the full amount of Taxes so deducted or withheld to the relevant authority as and when required Taxing Authority in accordance with all applicable lawlaws. The Issuer or any Guarantor (as applicable) will use commercially and the Guarantors shall make reasonable best efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes Taxes. The Issuer and will the Guarantors shall provide such certified copies to the Trustee. Wherever in , within a reasonable time after the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) date the payment of principalany Taxes so deducted or withheld is due pursuant to applicable law, (2) purchase prices in connection with either a purchase certified copy of Notes under tax receipts evidencing such payment or, if such tax receipts are not reasonably available to the Indenture Issuer or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guaranteesuch Guarantor, such reference shall be deemed to include other documentation that provides reasonable evidence of such payment of Additional Amounts as described under this heading to by the extent that, in Issuer or such context, Additional Amounts are, were or would be payable in respect thereof. Guarantor.
(c) At least 30 calendar days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on this Note with respect to the Notes is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer or a any Guarantor will shall be obligated to pay Additional Amounts with respect to any such paymentpayment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it will be promptly thereafter), the Issuer will promptly furnish shall deliver to the Trustee and the Paying Agent, if other than the Trustee, with Agent an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set setting forth such other information as is necessary to enable the such Trustee or the and Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer or shall promptly publish a Guarantor (as applicable) will pay to the Trustee or the Paying Agent notice in accordance with Section 13.02 stating that such Additional Amounts andwill be payable and describing its obligations to pay such amounts. In addition, if paid to a Paying Agent other than the TrusteeIssuer or any Guarantor, as the case may be, shall promptly provide pay (i) any present or future stamp, issue, registration, court documentation, excise or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the Trustee with documentation evidencing execution, issue, registration or delivery of the payment Notes or any Guarantee or any other document or instrument referred to thereunder and (ii) any such taxes, charges or duties imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes or any Guarantee and/or any other such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. document or instrument.
(d) The foregoing obligations in this Paragraph 2 will provisions shall survive any termination, defeasance or discharge of the Indenture. References Indenture and shall apply mutatis mutandis to any jurisdiction in which any Surviving Entity (as defined in Section 5.01(b)(i)) is organized or resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein or any jurisdiction from or through which payment is made by such Surviving Entity.
(e) Whenever the Indenture or the Notes refer to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note, such reference shall be deemed to include mention of the payment of Additional Amounts or indemnification payments as described hereunder, to the extent that in such context Additional Amounts or indemnification payments are, were or would be payable in respect thereof pursuant to this Section 4.12.
(f) The Issuer and the Guarantors, jointly and severally, shall indemnify and hold harmless the Holders and, upon written request of any Holder, reimburse such Holder for the amount of (i) any Taxes levied or imposed by a Relevant Taxing Jurisdiction and payable by such Holder in connection with payments made under or with respect to the Notes held by such Holder or any Guarantees; and (ii) any Taxes levied or imposed with respect to any reimbursement under the foregoing clause (i) or this clause (ii), so that the net amount received by such Holder after such reimbursement shall not be less than the net amount such Holder would have received if the Taxes giving rise to the reimbursement described in clauses (i) and/or (ii) had not been imposed, provided, however, that the indemnification obligation provided for in this Paragraph 2 paragraph (f) shall not extend to Taxes imposed for which the eligible Holder of the Notes would not have been eligible to receive payment of Additional Amounts hereunder or to the Issuer or any Guarantor shall apply extent such Holder received Additional Amounts with respect to any successor(s) theretosuch payments.
Appears in 1 contract
Sources: Indenture (Digicel Group LTD)
Additional Amounts. (a) All payments made under or with by the Company in respect to this Note under of the Indenture or pursuant to any Note Guarantee must Notes shall be made free and clear of of, and without deduction or withholding or deduction for or on account of any present or future taxtaxes, dutyduties, levyassessments, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) charges of whatever nature imposed or levied by the authorities of any jurisdiction (Withholding Taxes), unless the Company is compelled by law to deduct or withhold such taxes, duties, assessments, or governmental charges. In such event, the Company shall make such deduction or withholding, make payment of the amount so deducted or withheld to the appropriate governmental authority and forthwith pay such additional amounts (Additional Amounts) as may be necessary to ensure that the net amounts receivable by the holders of the Notes after such deduction or withholding shall equal the payment which would have been receivable in respect of the Notes in the absence of such deduction or withholding. The Company shall cause to be delivered, or, in the case of notes held by an institution that is holding the Notes on behalf of a beneficial owner, to use its best efforts to cause the institution to deliver, to the Paying Agent all forms necessary to ensure that a minimal rate of withholding applies to all payments by the Company in respect of the Notes to the holders or beneficial holders of the Notes, such as an IRS Form W-8IMY and any attached IRS Form W-8BEN, or a statement of withholding or allocation, as necessary. Notwithstanding the foregoing, no such Additional Amounts shall be payable: (1i) if such Withholding Taxes would not have been imposed but for (A) a present or former connection between the United States, Germany, Luxembourg, jurisdiction imposing the United Kingdom tax or any political subdivision or governmental taxing authority thereof or therein and the holder or beneficial holder of the relevant Note including, without limitation, a connection arising from such holder or beneficial holder having been a citizen, domiciliary, or resident of such jurisdiction or such political subdivision or taxing authority, being organized in such jurisdiction or such political subdivision or taxing authority, or having had a permanent establishment, branch or other fixed place of business therein (but excluding a connection arising solely from such holder or beneficial holder having executed, delivered, performed its obligations or received payment under the power Fiscal Agency Agreement or this Note), or (B) the failure of the holder or beneficial holder of the relevant Note to taxcomply with any reasonable certification, identification or other reporting requirement (2or such certifications, identifications or reporting proving to be false or incorrect) any jurisdiction from concerning the nationality, residence, identity or through which payment on the Notes or any Note Guarantee is madeconnection with such jurisdiction, or any political subdivision or governmental taxing authority thereof or therein having the power to tax therein, of such holder or (3) any other jurisdiction in which the payor beneficial holder, if compliance is organized or otherwise considered to be a resident or engaged in business for tax purposesrequired by such jurisdiction, or any political subdivision or governmental taxing authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantortherein, as the case may be, will be required a precondition to pay such amount (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax exemption from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer deduction or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) thereto.or
Appears in 1 contract
Sources: Fiscal Agency Agreement (Thirty Eight Hundred Fund LLC)
Additional Amounts. All payments made under (a) If the Company or with respect any Subsidiary Guarantor (or any successor of either), as applicable, is required by law or by the interpretation or administration thereof by the relevant government authority or agency to this Note under the Indenture withhold or pursuant to deduct any Note Guarantee must be made free and clear of and without withholding or deduction amount for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United StatesCayman Islands, GermanyLiberia, Luxembourg, the United Kingdom Cyprus or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor Company or any of its Subsidiary Guarantors is organized incorporated or otherwise considered to be a resident or engaged in business for tax purposes, purposes or by any political subdivision authority or governmental authority agency therein or thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”)or the jurisdiction of incorporation of any successor of the Company or any Subsidiary Guarantor) (hereinafter "Taxes") from any payment made under or with respect to the Securities or any Subsidiary Guarantee, collectively, “Taxes”as applicable, unless the IssuerCompany or the Subsidiary Guarantors, relevant Guarantor or other applicable withholding agent is as applicable, are required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If , the Issuer, a Company or such Subsidiary Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes (or any Note Guarantee, the Issuer or such Guarantorsuccessor of either), as the case may be, will be required to applicable shall pay such amount additional amounts (such amount the “"Additional Amounts”") as may be necessary so that the net amount received by each Holder (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder the Holder would have received if such Taxes had not been withheld or deducted; providedPROVIDED, howeverHOWEVER, that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to payments made to a Holder (an "Excluded Holder") in respect of a beneficial owner (i) which is subject to such Taxes by reason of its being connected with the Cayman Islands, Liberia, Cyprus or any Tax imposed on interest jurisdiction in which the Company or any of its Subsidiary Guarantors is incorporated or resident for tax purposes otherwise than by the United States mere holding of Securities or the receipt of payments thereunder (or under the related Subsidiary Guarantee), (ii) which presents any Security for payment of principal more than 60 days after the later of (x) the date on which payment first became due and (y) if the full amount payable has not been received by the Trustee on or prior to such due date, the date on which, the full amount payable having been so received, notice to that effect shall have been given to the Holders by the Trustee, except to the extent that the Holder would have been entitled to such Additional Amounts on presenting such Security for payment on any day during the applicable 60-day period, including the last day of the applicable 60-day period, (iii) which failed to duly and timely comply with a reasonable, timely request of the Company to provide information, documents or other evidence concerning the Holder's nationality, residence, entitlement to treaty benefits, identity or connection with Cayman Islands, Liberia, Cyprus or any jurisdiction in which the Company or any of its Subsidiary Guarantors is incorporated or resident for tax purposes or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owningthereof, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect if and to the Issuer extent that due and timely compliance with such request would have reduced or eliminated any Guarantor, Taxes as to which Additional Amounts would have otherwise been payable to such Holder but for this clause (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or ), (iv) on account of any United States federal tax imposed pursuant to FATCAestate, inheritance, gift, sale, transfer, personal property or other similar Tax, (v) which is a fiduciary, a partnership or not the beneficial owner of any payment on a Security or the Subsidiary Guarantees, if and to the extent that any beneficiary or settlor of such fiduciary, any partner in such partnership or the beneficial owner of such payment (as the case may be) would not have been entitled to receive Additional Amounts with respect to German tax residents such payment if such beneficiary, settlor, partner or beneficial owner had been the Holder of such Security or (vi) any Tax withheld by a German custodian, who is required to deduct combination of the withholding tax from such interest payments, provided that foregoing numbered clauses of this Note is held in custody with such German custodianproviso. The Issuer Company or the Subsidiary Guarantors (or any Guarantor (successor of either), as applicable) required to withhold any Taxes will , shall make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. .
(b) The Issuer Company or the Subsidiary Guarantors (or any Guarantor (successor of either), as applicable) will use commercially reasonable efforts , shall furnish to obtain the Trustee, within 30 days after the date the payment of any Taxes is due pursuant to applicable law, certified copies of tax receipts evidencing the such payment by the Issuer Company or such Guarantor the Subsidiary Guarantors (or any successor of either), as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction , in such form as provided in the normal course by the taxing authority imposing such Taxes and will provide in such certified copies form as is legally sufficient to obtain foreign tax credits for United States Federal income tax purposes. The Trustee shall make such evidence available to the TrusteeHolders upon request. Wherever in The Company or the Indenture, this Note Subsidiary Guarantors (or any Note Guarantee successor of either), as applicable, shall upon written request of each Holder (other than an Excluded Holder), reimburse each such Holder for the amount of (i) any Taxes so levied or imposed and paid by such Holder as a result of payments made under or with respect to the Securities or the Subsidiary Guarantees, as applicable, and (ii) any Taxes imposed with respect to any such reimbursement under the immediately preceding clause (i), but excluding any such Taxes on such Holder's net income, so that the net amount received by such Holder after such reimbursement will not be less than the net amount the Holder would have received if Taxes (other than such Taxes on such Holder's net income) on such reimbursement had not been imposed.
(c) Whenever in this Indenture there are is mentioned, in any context, (1a) the payment of principal, (2b) purchase prices in connection with a purchase of Notes under the Indenture or this NoteSecurities, (3c) interest or (4d) any other amount payable on or with respect to this Note or any Note Guaranteeof the Securities, such reference mention shall be deemed to include mention of the payment of Additional Amounts as described under provided for in this heading section to the extent that, in such context, Additional Amounts are, were or would be payable pay able in respect thereof. At least 30 days prior to each date on which payment .
(d) The Company or the Subsidiary Guarantors (or any successor of principaleither) shall pay any present or future stamp, premiumcourt or documentary taxes or any other excise or property taxes, if anycharges or similar levies that arise in any jurisdiction from the execution, interest delivery, enforcement or registration of the Securities or any other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before document or after instrument in relation thereto, or the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts receipt of any payments with respect to the Securities or the Subsidiary Guarantees, excluding such taxes, charges or similar levies imposed by any jurisdiction outside of the Cayman Islands, Liberia, Cyprus or any jurisdiction in which the Company or any of the Subsidiary Guarantors is incorporated or resident for tax purposes, the jurisdiction of incorporation of any successor of the Company or any jurisdiction in which a paying agent is located, and hereby indemnifies the Holders for any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that taxes paid by such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon requestHolders. The foregoing obligations in this Paragraph 2 will shall survive any termination, defeasance or discharge of the this Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) thereto.
Appears in 1 contract
Additional Amounts. All payments made under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principalunder or with respect to the Notes or the Guarantees, premiumas the case may be, if any, interest or other amounts on this Note is to be made due and payable (unless an such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer Company or a Guarantor the Guarantors (as the case may be) will be obligated to pay Additional Amounts pursuant to Paragraph 2 of the Notes (the “Additional Amounts”) with respect to any such payment, the Issuer Company or the Guarantors (as the case may be) will promptly furnish deliver to the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and payable, the amounts so payable, payable and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. Each such Officers’ Certificate shall be relied upon until the receipt of a further Officers’ Certificate addressing such matters. The Issuer Company or a Guarantor the Guarantors (as applicablethe case may be) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Principal Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders Holders upon request. The Company or the Guarantors (as the case may be) shall indemnify the Trustee for, and hold it harmless against, any loss, liability, fee or expense incurred without negligence or willful misconduct on the Trustee’s part arising out of or in connection with actions taken or omitted by the Trustee in reliance on any Officers’ Certificate furnished to it pursuant to this Section 4.17. The Company or the Guarantors (as the case may be) will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Authority in accordance with applicable law. The Company or the Guarantors (as the case may be) will use reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each relevant Taxing Authority imposing such Taxes and will provide such certified copy to each Holder. The Payor will attach to each certified copy an Officer’s Certificate stating (x) that the amount of withholding Taxes evidenced by the certified copy was paid in connection with payments in respect of the principal amount of Notes then outstanding and (y) the amount of such withholding Taxes paid per €1,000, as the case may be, principal amount of the Notes. The foregoing obligations in of this Paragraph 2 Section 4.17 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor Person to the IndentureCompany or the Guarantors (as the case may be) is organized or any political subdivision or taxing authority or agency thereof or therein. References Whenever in this Paragraph 2 Indenture or in the Notes there is mentioned, in any context, the payment of principal, premium, if any, or interest, if any, or any other amount payable under or with respect to any Note and any Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the Issuer extent that, in such context, Additional Amounts are, were or any Guarantor shall apply to any successor(s) theretowould be payable in respect thereof.
Appears in 1 contract
Sources: Guarantee Agreement (Central European Distribution Corp)
Additional Amounts. (a) All payments made by or on behalf of the Company under or with respect to this Note the Notes, or by or on behalf of any Guarantor under the Indenture or pursuant with respect to any Note Guarantee must Guarantee, shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter referred to as “Taxes”) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom government of Canada or any political subdivision province or governmental authority thereof territory of Canada, or therein having by or on behalf of any other jurisdiction in which the power to taxCompany or any Guarantor is organized, (2) or is otherwise carrying on business in, or is otherwise resident for tax purposes or any jurisdiction from or through which any payment on the Notes or any Note Guarantee is mademade or, or in each case, any political subdivision or governmental any authority or agency therein or thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent any Person is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. thereof.
(b) If the Issuer, a Guarantor or other any applicable withholding agent making a payment on behalf of is required (by law or the Issuer interpretation or a Guarantor is so required administration thereof) to withhold or deduct any amount for or on account of Taxes from imposed by a Relevant Taxing Jurisdiction in respect of any payment made under or with respect to the Notes or any a Note Guarantee, the Issuer or such GuarantorCompany and the Guarantors (each, as a “Payor” and collectively, the case may be, will be required to “Payors”) shall pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so that the net amount received by a beneficial owner of Notes (including Additional Amounts) received by each holder after such withholding or deduction (including any such withholding or deduction on such in respect of Additional Amounts) will not be less than equal the amount such holder beneficial owner of Notes would have received if such Taxes (including Taxes on any Additional Amounts) had not been withheld or deducted; provided, however, that no the foregoing obligations to pay Additional Amounts will be payable shall not apply to (1) any Canadian Taxes imposed because the relevant Holder or beneficial owner of Notes does not deal at arm’s length (within the meaning of the Tax Act) with respect to payments made to the Payor at the time of the payment, other than where the non-arm’s length relationship arises as a result of the existence, exercise or enforcement of any holder Note or Note Guarantee; (2) any Canadian Taxes to the extent such Taxes are assessed or imposed by reason of (i) such holder the relevant Holder or beneficial owner of the Note being considered to be a “specified shareholder” as defined in subsection 18(5) of the Tax Act of the Payor of such payment or to have been connected not dealing at arm’s length (for purposes of the Tax Act) with a Relevant Taxing Jurisdiction“specified shareholder” of the Payor of such payment, other than by where the Holder or beneficial owner of the Notes is a “specified shareholder,” or does not deal at arm’s length with a “specified shareholder,” as a result of the existence, exercise or enforcement of any Note or Note Guarantee; (3) any withholding on account of Taxes imposed pursuant to the U.S. Foreign Account Tax Compliance Act (FATCA) under Sections 1471 through 1474 of the Code, as of the Issue Date (or any amended or successor version of such Sections that is substantively comparable and not materially more onerous to comply with) and any regulations or official interpretations promulgated thereunder; or (4) any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant Holder or beneficial owner of Notes and the Relevant Taxing Jurisdiction including, for greater certainty and without limitation, being organized or having its principal office therein, being or having been a citizen, resident or national thereof, or being or having been engaged in a trade or business therein or maintaining a permanent establishment or other physical presence in or otherwise having some connection with the Relevant Taxing Jurisdiction (other than a connection from the mere acquisition, ownership, holding or disposition of this Note, such Note or a beneficial interest therein or the enforcement of rights under this Note thereunder or under any a Note Guarantee or the receipt of payments any payment in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on thereof or in respect of this a Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing JurisdictionGuarantee). Further, no ; nor shall Additional Amounts shall be paid (a) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment within 30 days after the date on which such payment became due and payable with respect or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the relevant Holder or beneficial owner of Notes would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period); (ib) any Tax to the extent relating to Taxes imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any the Holder’s or beneficial owner holding of Notes’ failure to comply with any certification, documentation, information or owningother evidentiary requirement concerning such Holder’s or beneficial owner of Notes’ nationality, actually residence, identity or constructivelyconnection with the Relevant Taxing Jurisdiction if such compliance is required by law, 10% regulation, administrative practice or more an applicable treaty as a precondition to any exemption from, or a reduction in the rate of deduction or withholding of, such Taxes to which such Holder or beneficial owner of Notes is entitled; (c) to the extent relating to any Tax which would have been avoided by such Holder or beneficial owner of Notes by presenting the relevant Note (if presentation is required); or (d) to the extent relating to any combination of any of the total combined voting power above clauses (any such Tax in respect of all classes of stock of which Additional Amounts are payable, an “Indemnified Tax”).
(c) The applicable Payor, if it is the Issuer or applicable withholding agent, shall make any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer Company shall provide the Trustee (and, upon request, a Holder or any Guarantor (as applicablebeneficial owner of Notes) will use commercially reasonable efforts to obtain certified copies of tax with official receipts or other documentation evidencing the payment by of the Issuer Taxes with respect to which Additional Amounts are paid.
(d) If a Payor is or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies become obligated to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes pay Additional Amounts under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note any payment made on the Notes or any a Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At at least 30 days prior to each the date on which of such payment of principal, premium, if any, interest or other amounts on this Note is to be made (unless an such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated such Payor shall deliver to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, Agent (if other than the Trustee, with different) an Officers’ Officer’s Certificate stating the fact that such Additional Amounts will be payable and the amounts amount so payable, payable and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the relevant payment date. The Issuer or a Guarantor .
(as applicablee) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing Whenever in this Indenture there is mentioned in any context: (1) the payment of principal; (2) redemption prices or purchase prices in connection with a redemption or purchase of Notes; (3) interest; or (4) any other amount payable on or with respect to any of the Notes or any Note Guarantee, such Additional Amounts. Copies of such documentation reference shall be made available deemed to include payment of Additional Amounts as described under this Section 2.13 to the holders upon request. extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The foregoing Company and the Guarantors shall indemnify and hold harmless a Holder or beneficial owner of Notes for the amount of any Indemnified Taxes (including, for greater certainty, taxes payable pursuant to Regulation 803 of the Income Tax Regulations (Canada)) levied or imposed and paid by such Holder or beneficial owner of Notes as a result of payments made under or with respect to the Notes or any Note Guarantee, and with respect to any reimbursements under this clause 2.13(f).
(g) The Company and the Guarantors shall pay any present or future stamp, court or documentary taxes or any other excise, property or similar Taxes, charges or levies that arise in any Relevant Taxing Jurisdiction from the execution, delivery, or registration of, or the receipt of any payments with respect to, the Notes, the Note Guarantees, this Indenture or any other document or instrument in relation thereof, or any such Taxes imposed by any jurisdiction in respect of the enforcement of the Notes, the Note Guarantees, this Indenture or any other document or instrument in relation thereof, and the Company and the Guarantors shall indemnify the Holders or beneficial owners of Notes for any such amounts (including penalties, interest and other liabilities related thereto) paid by such Holders or beneficial owners of Notes.
(h) The obligations described in this Paragraph 2 Section 2.13 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 Indenture and will apply, mutatis mutandis, to any successor Person to the Issuer Company or any Guarantor shall apply and to any successor(s) theretoRelevant Taxing Jurisdiction with respect to any such successor Person.
Appears in 1 contract
Sources: Indenture (New Gold Inc. /FI)
Additional Amounts. (a) All payments made that the Issuer makes under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must Notes shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction in which the Issuer is organized or is a resident for tax purposes or from or through which the Issuer makes any payment on the Notes or by or within any Note Guarantee is made, department or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposeseach, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent Issuer is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note GuaranteeNotes, the Issuer or such Guarantor, as the case may be, will be required to shall pay such amount additional amounts in cash (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder Holder after such withholding or deduction (including any withholding or deduction on such attributable to Additional AmountsAmounts payable hereunder) will not be less than the amount such holder the Holder would have received if such Taxes had not been withheld or deducted; provided.
(b) Notwithstanding the foregoing, however, that the Issuer shall pay no Additional Amounts will be payable with respect to payments made to a Holder or beneficial owner of any holder Note:
(i) to the extent the Taxes giving rise to such Taxes are Additional Amounts would not have been imposed but for the Holder’s or beneficial owner’s present or former connection with the Relevant Taxing Jurisdiction (other than a connection arising by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under any Notes or this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or Indenture);
(ii) to the extent the Taxes giving rise to such holder Additional Amounts would not have been imposed but for the failure of the Holder or beneficial owner not completing any procedural formalities that it of Notes, following the Issuer’s written request addressed to the Holder, to the extent such Holder or beneficial owner is legally eligible entitled to complete and are necessary for the Issuerdo so, Guarantors to comply with any certification, identification, information or other applicable reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding agent to make or obtain authorization to make payments without such of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior to a certification that the receipt of any payment on Holder or beneficial owner is not resident in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another the Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to ;
(i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”iii) with respect to the Issuer any estate, inheritance, gift, sales, transfer or personal property tax or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or similar Taxes;
(iv) any United States federal tax if such Holder is a fiduciary or partnership or Person other than the sole beneficial owner of such payment and the Taxes giving rise to such Additional Amounts would not have been imposed pursuant on such payment had such Holder been the beneficiary, partner or sole beneficial owner, as the case may be, of such Note (but only if there is no material cost or expense associated with transferring such Note to FATCAsuch beneficiary, partner or sole beneficial owner and no restriction on such transfer that is outside the control of such beneficiary, partner or sole beneficial owner);
(v) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the presentation by the Holder of any Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(vi) with respect to German tax residents any Tax withheld by withholding or deduction that is imposed on a German custodian, who payment to an individual and that is required to deduct be made pursuant to the withholding tax from European Council Directive on the taxation of savings income which was adopted by the ECOFIN Council on June 3, 2003 or any law implementing or complying with, or introduced in order to conform to, such interest paymentsdirective (the “EU Savings Tax Directive”) or is required to be made pursuant to the Agreement between the European Community and the Swiss Confederation dated as of October 26, provided that this Note is held 2004 providing for measures equivalent to those laid down in custody the EU Savings Tax Directive (the “EU-Swiss Savings Tax Agreement”) or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, such agreement; and
(vii) with such German custodianrespect to any combination of the items listed above. The Issuer or any Guarantor shall (as applicableA) required to withhold any Taxes will make such withholding or deduction of Taxes required by applicable law and (B) remit the full amount of Taxes so deducted or withheld to the relevant authority as and when required Taxing Authority in accordance with all applicable lawlaws. The Issuer or any Guarantor (as applicable) will use commercially shall make reasonable best efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will Taxes. The Issuer shall provide such certified copies to the Trustee. Wherever in , within a reasonable time after the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) date the payment of principalany Taxes so deducted or withheld is due pursuant to applicable law, (2) purchase prices in connection with either a purchase certified copy of Notes under tax receipts evidencing such payment or, if such tax receipts are not reasonably available to the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note GuaranteeIssuer, such reference shall be deemed to include other documentation that provides reasonable evidence of such payment of Additional Amounts as described under this heading to by the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. Issuer.
(c) At least 30 calendar days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on this Note with respect to the Notes is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer or a Guarantor will shall be obligated to pay Additional Amounts with respect to any such paymentpayment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it will be promptly thereafter), the Issuer will promptly furnish shall deliver to the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set setting forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer or shall promptly publish a Guarantor (as applicable) will pay to the Trustee or the Paying Agent notice in accordance with Section 13.02 stating that such Additional Amounts andwill be payable and describing the obligation to pay such amounts. In addition, if paid the Issuer shall pay any present or future stamp, issue, registration, court documentation, excise or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the execution, issue, registration or delivery of the Notes or any other document or instrument referred to thereunder and any such taxes, charges or duties imposed by any jurisdiction as a Paying Agent result of, or in connection with, the enforcement of the Notes and/or any other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. document or instrument.
(d) The foregoing obligations in this Paragraph 2 will provisions shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any Surviving Entity (as defined in Section 5.01(b)(i)) is organized or resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein or any jurisdiction from or through which payment is made by such Surviving Entity.
(e) Whenever this Indenture or the Indenture. References Notes refer to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note, such reference shall be deemed to include mention of the payment of Additional Amounts or indemnification payments as described hereunder, to the extent that in such context Additional Amounts or indemnification payments are, were or would be payable in respect thereof pursuant to this Section 4.12.
(f) The Issuer shall indemnify and hold harmless the Holders and, upon written request of any Holder, reimburse such Holder for the amount of (i) any Taxes levied or imposed by a Relevant Taxing Jurisdiction and payable by such Holder in connection with payments made under or with respect to the Notes held by such Holder; and (ii) any Taxes levied or imposed with respect to any reimbursement under the foregoing clause (i) or this clause (ii), so that the net amount received by such Holder after such reimbursement shall not be less than the net amount such Holder would have received if the Taxes giving rise to the reimbursement described in clauses (i) and/or (ii) had not been imposed, provided, however, that the indemnification obligation provided for in this Paragraph 2 paragraph (f) shall not extend to Taxes imposed for which the eligible Holder of the Notes would not have been eligible to receive payment of Additional Amounts hereunder or to the Issuer or any Guarantor shall apply extent such Holder received Additional Amounts with respect to any successor(s) theretosuch payments.
Appears in 1 contract
Sources: Indenture (Digicel Group LTD)
Additional Amounts. All payments made under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, or interest or other amounts on this Note the Notes is to be made (unless an such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts pursuant to Paragraph 2 of the Notes (the “Additional Amounts”) with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders Holders upon request. The Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or expense incurred without negligence or willful misconduct on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished to them pursuant to this Section 4.12. The Issuer and each Guarantor (as applicable) will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer and each Guarantor (as applicable) will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copy to the Trustee. If the Issuer or the Guarantors conduct business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than a Relevant Taxing Jurisdiction and, as a result, are required by the law of such Additional Taxing Jurisdiction to deduct or withhold any amount on account of taxes imposed by such Additional Taxing Jurisdiction from payments under the Notes which would not have been required to be so deducted or withheld but for such conduct of business in such Additional Taxing Jurisdiction, the Additional Amounts provision described above shall be considered to apply to such Holders as if references in such provision to “Taxes” included taxes imposed by way of deduction or withholding by any such Additional Taxing Jurisdiction (or any political subdivision thereof or taxing authority therein). The Issuer will pay any present stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in the United States (or any political subdivision or governmental authority thereof or therein having the power to tax) from the execution, delivery and registration of Notes upon original issuance and initial resale of the Notes or any other document or instrument referred to therein, or in connection with any payment with respect to, or enforcement of, the Notes or any Note Guarantee or any other document or instrument referred to therein. If at any time the Issuer changes its place of organization to outside of the United States or there is a new issuer organized outside of the United States, the Issuer or new issuer, as applicable, will pay any stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in the jurisdiction in which the Issuer or new issuer is organized (or any political subdivision thereof or therein) and are payable by the Holders of the Notes in respect of the Notes or any Note Guarantee or any -40- other document or instrument referred to therein under any law, rule or regulation in effect at the time of such change or thereafter. The foregoing obligations in of this Section 4.12 and Paragraph 2 of the Notes will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 Indenture and will apply mutatis mutandis to any successor Person to the Issuer or the Guarantors. Whenever in this Indenture or in the Notes or any Guarantor shall apply Note Guarantee there is mentioned, in any context, the payment of principal, purchase price, premium or interest, if any, or any other amount payable under or with respect to any successor(s) theretoNote, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
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Additional Amounts. (a) All payments made that the Issuers make under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must Notes shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction in which any Issuer is organized or is a resident for tax purposes or from or through which any of the foregoing makes any payment on the Notes or by or within any Note Guarantee is made, department or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposeseach, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent such Issuer is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the an Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note GuaranteeNotes, the such Issuer or such Guarantor, as the case may be, will be required to shall pay such amount additional amounts in cash (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder Holder after such withholding or deduction (including any withholding or deduction on such attributable to Additional AmountsAmounts payable hereunder) will shall not be less than the amount such holder the Holder would have received if such Taxes had not been withheld or deducted; provided.
(b) Notwithstanding the foregoing, however, that no none of the Issuers shall pay Additional Amounts will be payable with respect to payments made to a Holder or beneficial owner of any holder Note:
(i) to the extent the Taxes giving rise to such Taxes are Additional Amounts would not have been imposed but for the Holder’s or beneficial owner’s present or former connection with the Relevant Taxing Jurisdiction (other than a connection arising by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition Disposition of this Note, the Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under any Notes or this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or Indenture);
(ii) to the extent the Taxes giving rise to such holder Additional Amounts would not have been imposed but for the failure of the Holder or beneficial owner not completing of Notes, following any procedural formalities that it Issuer’s written request addressed to the Holder, to the extent such Holder or beneficial owner is legally eligible entitled to complete and are necessary for the Issuerdo so, Guarantors to comply with any certification, identification, information or other applicable reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding agent to make or obtain authorization to make payments without such of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior to a certification that the receipt of any payment on Holder or beneficial owner is not resident in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another the Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with ;
(iii) in respect to (i) of any Tax imposed on interest by or withheld pursuant to Sections 1471 through 1474 of the United States Code, as of the date of this Indenture (or any political subdivision amended or governmental authority thereof successor version of such sections that is substantively comparable), current or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer future Treasury Regulations issued thereunder or any Guarantor entitled official interpretation thereof, any agreement entered into pursuant to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(41471(b)(1) of the Internal Revenue Code as of 1986the date of this Indenture (or any amended or successor version described above), as amended and any intergovernmental agreement (or related governmental regulations, rules or official administrative practices) implementing the “Code”foregoing;
(iv) with respect to the Issuer any estate, inheritance, gift, sales, transfer or personal property tax or any Guarantor, similar Taxes;
(iiiv) any Tax if such Holder is a fiduciary or partnership or Person other than the sole beneficial owner of such payment and the Taxes giving rise to such Additional Amounts would not have been imposed on interest such payment had such Holder been the beneficiary, partner or sole beneficial owner, as the case may be, of such Note (but only if there is no material cost or expense associated with transferring such Note to such beneficiary, partner or sole beneficial owner and no restriction on such transfer that is outside the control of such beneficiary, partner or sole beneficial owner);
(vi) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the presentation by the United States or any political subdivision or governmental authority thereof or therein by reason Holder of any beneficial owner being Note, where presentation is required, for payment on a bank extending credit pursuant to a loan agreement entered into in date more than 30 days after the ordinary course of its trade date on which payment became due and payable or business or the date on which payment thereof is duly provided for whichever occurs later; and
(iv) any United States federal tax imposed pursuant to FATCA, (vvii) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct combination of the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. items listed above.
(c) The Issuer or any Guarantor Issuers shall (as applicablei) required to withhold any Taxes will make such withholding or deduction required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially Issuers shall make reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will Taxes. The Issuers shall provide such certified copies to the Trustee. Wherever in , within a reasonable time after the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) date the payment of principalany Taxes so deducted or withheld are due pursuant to applicable law, (2) purchase prices in connection with either a purchase certified copy of Notes under tax receipts evidencing such payment, or, if such tax receipts are not reasonably available to the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note GuaranteeIssuers, such reference shall be deemed to include other documentation that provides reasonable evidence of such payment of Additional Amounts as described under this heading to by the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. Issuers.
(d) At least 30 calendar days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on this Note with respect to the Notes is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer or a Guarantor will Issuers shall be obligated to pay Additional Amounts with respect to any such paymentpayment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it will be promptly thereafter), the Issuer will promptly furnish Issuers shall deliver to the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will shall set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer or Issuers shall promptly publish a Guarantor (as applicable) will pay to the Trustee or the Paying Agent notice in accordance with Section 13.02 stating that such Additional Amounts will be payable and describing the obligations to pay such amounts. The Issuers, jointly and severally, shall indemnify and hold harmless the Holders, and, if paid upon written request of any Holder, reimburse such Holder for the amount of (i) any Taxes levied or imposed by a Relevant Taxing Jurisdiction and payable by such Holder in connection with payments made under or with respect to the Notes held by such Holder; and (ii) any Taxes levied or imposed by a Paying Agent other Relevant Taxing Jurisdiction with respect to any reimbursement under the foregoing clause (i) or this clause (ii), so that the net amount received by such Holder after such reimbursement shall not be less than the Trusteenet amount such H▇▇▇▇▇ would have received if the Taxes giving rise to the reimbursement described in clauses (i) and/or (ii) had not been imposed; provided, however, that the indemnification obligation provided for in this paragraph shall promptly provide not extend to Taxes imposed for which the Trustee with documentation evidencing the eligible Holder would not have been eligible to receive payment of such Additional Amounts. Copies of such documentation shall be made available Amounts hereunder or to the holders upon requestextent such H▇▇▇▇▇ received Additional Amounts with respect to such payments. In addition, the Issuers shall pay (i) any present or future stamp, issue, registration, court, documentation, excise or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the execution, issue, registration or delivery of the Notes or any other document or instrument referred to thereunder and (ii) any such taxes, charges or duties imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes and/or any other such document or instrument.
(e) The foregoing obligations in described under this Paragraph 2 will Section 4.12 shall survive any termination, defeasance or discharge of the Indenture. References this Indenture and shall apply mutatis mutandis to any successor Person to an Issuer and to any jurisdiction in this Paragraph 2 to the Issuer which any such successor is organized or is otherwise resident for tax purposes or any Guarantor shall apply jurisdiction from or through which payment is made by such successor or its respective agents.
(f) Whenever this Indenture or the Notes refer to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any successor(s) theretoNote, such reference includes the payment of Additional Amounts or indemnification payments as described hereunder, if applicable.
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Sources: Indenture (Difl Us Ii LLC)
Additional Amounts. All payments made under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, or interest or other amounts on this Note the Notes is to be made (unless an such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts pursuant to Paragraph 2 of the Notes (the “Additional Amounts”) with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders Holders upon request. The Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or expense incurred without negligence or willful misconduct on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished to them pursuant to this Section 4.12. The Issuer and each Guarantor (as applicable) will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer and each Guarantor (as applicable) will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copy to the Trustee. If the Issuer or the Guarantors conduct business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than a Relevant Taxing Jurisdiction and, as a result, are required by the law of such Additional Taxing Jurisdiction to deduct or withhold any amount on account of taxes imposed by such Additional Taxing Jurisdiction from payments under the Notes which would not have been required to be so deducted or withheld but for such conduct of business in such Additional Taxing Jurisdiction, the Additional Amounts provision described above shall be considered to apply to such Holders as if references in such provision to “Taxes” included taxes imposed by way of deduction or withholding by any such Additional Taxing Jurisdiction (or any political subdivision thereof or taxing authority therein). The Issuer will pay any present stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in the United States (or any political subdivision or governmental authority thereof or therein having the power to tax) from the execution, delivery and registration of Notes upon original issuance and initial resale of the Notes or any other document or instrument referred to therein, or in connection with any payment with respect to, or enforcement of, the Notes or any Note Guarantee or any other document or instrument referred to therein. If at any time the Issuer changes its place of organization to outside of the United States or there is a new issuer organized outside of the United -40- States, the Issuer or new issuer, as applicable, will pay any stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in the jurisdiction in which the Issuer or new issuer is organized (or any political subdivision thereof or therein) and are payable by the Holders of the Notes in respect of the Notes or any Note Guarantee or any other document or instrument referred to therein under any law, rule or regulation in effect at the time of such change or thereafter. The foregoing obligations in of this Section 4.12 and Paragraph 2 of the Notes will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 Indenture and will apply mutatis mutandis to any successor Person to the Issuer or the Guarantors. Whenever in this Indenture or in the Notes or any Guarantor shall apply Note Guarantee there is mentioned, in any context, the payment of principal, purchase price, premium or interest, if any, or any other amount payable under or with respect to any successor(s) theretoNote, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
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Additional Amounts. (a) All payments made that the Issuers make under or with respect to this Note the Securities or that the Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guaranties shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes Securities or the relevant Guaranty is made on behalf of the Issuers or any Note Guarantee is madeGuarantor, or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax tax, or (3) any other jurisdiction in which the payor Issuers or any Guarantor is organized or otherwise considered to be a resident or engaged in business for tax purposesresident, or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax (each of clauses (1), (2) and (3), a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the IssuerIssuers or such Guarantor, relevant Guarantor or other applicable withholding agent as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer Issuers or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note GuaranteeSecurities, the Issuer Issuers or such the Guarantor, as the case may be, will be required shall, subject to the exceptions set forth in Section 2.16(b), pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder Holder of the Securities after such withholding or deduction (including any withholding or deduction on such attributable to Additional AmountsAmounts payable hereunder) will shall not be less than the amount such holder the Holder would have received if such Taxes had not been withheld or deducted; provided.
(b) Neither the Issuers nor any Guarantor will, however, that no be required to pay Additional Amounts will be payable with respect to payments made to any holder a Holder or beneficial owner of a Security:
(1) to the extent the Taxes giving rise to such Taxes are Additional Amounts would not have been imposed by reason of (i) such holder but for the Holder’s or beneficial owner being considered to be owner’s present or to have been connected former connection with a the Relevant Taxing Jurisdiction, Jurisdiction (other than by the acquisition, ownership, holding or disposition of this Note, a Security or by reason of the receipt of payments thereunder or under any Guaranty or the exercise or enforcement of rights under any Securities or this Note Indenture or under any Note Guarantee or Guaranty);
(2) to the receipt extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the failure of payments in respect of this Note or any Note Guarantee, or (ii) such holder the Holder or beneficial owner not completing any procedural formalities that it of Securities, following the Issuers’ written request addressed to the Holder, to the extent such Holder or beneficial owner is legally eligible entitled to complete and are necessary for the Issuerdo so, Guarantors to comply with any certification, identification, information or other applicable reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding agent to make or obtain authorization to make payments without such of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior to a certification that the receipt of any payment on Holder or beneficial owner is not resident in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another the Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to ;
(i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”3) with respect to the Issuer any estate, inheritance, gift, sales, transfer or personal property tax or any Guarantorsimilar Taxes (other than stamp, issue, registration, court, documentation, excise or other similar Taxes referred to in Section 2.16(f));
(iii4) any Tax if such Holder is a fiduciary or partnership or Person other than the sole beneficial owner of such payment and the Taxes giving rise to such Additional Amounts would not have been imposed on interest by such payment had such Holder been the United States beneficiary, partner or any political subdivision sole beneficial owner, as the case may be, of such Security (but only if there is no material cost or governmental authority thereof expense associated with transferring such Security to such beneficiary, partner or therein by reason of any sole beneficial owner being a bank extending credit pursuant to a loan agreement entered into in and no restriction on such transfer that is outside the ordinary course control of its trade such beneficiary, partner or business or sole beneficial owner);
(iv) any United States federal tax imposed pursuant to FATCA, (v5) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes that are payable otherwise than by deduction or withholding from payments on, or in respect of, the applicable Security or Guaranty;
(6) with respect to any Taxes imposed on amounts payable to such Holder or beneficial owner at the time such Holder becomes a party to this Indenture, except to the extent that such Holder’s transferor or assignor (if any) was entitled, at the time of assignment, to receive Additional Amounts with respect to such Taxes pursuant to Section 2.16(a); and
(7) with respect to any combination of the items listed above.
(c) The Issuers and the Guarantors will (1) make such withholding or deduction required by applicable law and (2) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) Issuers and the Guarantors will use commercially reasonable efforts provide to obtain the Trustee either a certified copies copy of tax receipts evidencing such payment or, if such tax receipts are not reasonably available to the Issuers or such Guarantor, such other documentation that provides reasonable evidence of such payment by the Issuer Issuers or such Guarantor Guarantor.
(as applicabled) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 calendar days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Issuers or the Guarantors shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Securities is due and payable, in which case it shall be promptly thereafter), the Issuers shall deliver to the Trustee an Officers’ Certificate stating that such Additional Amounts shall be payable and the amounts so payable and shall set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date. The Issuers and the Guarantors shall promptly publish a notice in accordance with Section 11.2 stating that such Additional Amounts will be payable and describing the obligation to pay such amounts.
(e) The Issuers and the Guarantors, jointly and severally, shall indemnify and hold harmless the Trustee and the Holders of Securities, and, upon written request of the Trustee or any Holder of Securities, reimburse the Trustee or such Holder for the amount of (1) any Taxes levied or imposed by a Relevant Taxing Jurisdiction and payable by the Trustee or such Holder in connection with payments made under or with respect to the Securities held by such Holder or any Guaranties; and (2) any Taxes levied or imposed with respect to any reimbursement under the foregoing clause (1) or this clause (2), so that the net amount received by the Trustee or such Holder after such reimbursement shall not be less than the net amount the Trustee or such Holder would have received if the Taxes giving rise to the reimbursement described in clauses (1) and/or (2) had not been imposed; provided, however, that the indemnification obligation provided for in this Section 2.16(e) shall not extend to Taxes imposed for which the eligible Holder of the Securities would not have been eligible to receive payment of Additional Amounts hereunder or to the extent such Holder received Additional Amounts with respect to such payments.
(f) The Issuers and the Guarantors shall pay and jointly and severally shall indemnify and hold harmless the Trustee and the Holders of Securities, and upon written request of the Trustee or any Holder of Securities, reimburse the Trustee or such Holder for the amount of any present or future stamp, issue, registration, court, documentation, excise or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the execution, issue, registration or delivery of the Securities or any Guaranties or any other document or instrument referred to thereunder and any such taxes, charges or duties imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Securities or any Guaranty and/or any other such document or instrument. The provisions of this Section 2.16 shall survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor Person to the Issuers or any Guarantor and to any jurisdiction in which such successor is organized or is otherwise resident for tax purposes or any jurisdiction from or through which payment is made by such successor or its respective agents. Whenever this Indenture refers to, in any context, the payment of principal, premium, if any, interest or any other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before amount payable under or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any Security, such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing reference includes the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any terminationAmounts or indemnification payments as described hereunder, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) theretoif applicable.
Appears in 1 contract
Sources: Indenture (FRNK Technology Group)
Additional Amounts. (a) All payments made that the Issuers make under or with respect to this Note the Notes or that the Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments by or on behalf of the any jurisdiction (1) other than the United States, Germanyany state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, Luxembourgresident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the United Kingdom Paying Agent) makes any payment on this Note or by or within any department, political subdivision or governmental authority thereof of or therein in any of the foregoing having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant such Issuer or Guarantor or other applicable withholding agent agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the either Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes this Note or any Note Guarantee, the such Issuer or such Guarantor, as the case may be, will be required to shall pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder beneficial owner of the Notes, after such withholding or deduction (including any withholding or deduction on such in respect of any Additional Amounts) will not be less than the amount such holder the beneficial owner would have received if such Taxes had not been withheld or deducted; provided.
(b) None of the Issuers or Guarantors will, however, that no pay Additional Amounts will be payable with in respect to payments made to or on account of:
(i) any holder Taxes, to the extent such Taxes are imposed or levied by a Relevant Taxing Jurisdiction by reason of (i) such holder the Holder’s or beneficial owner being considered to be owner’s present or to have been connected former connection with a such Relevant Taxing Jurisdiction, Jurisdiction (other than by the acquisitionmere receipt, ownership, holding or disposition of this Note, or by reason of the receipt of any payments in respect of any Notes or any Guarantee, or the exercise or enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note Notes or any Note Guarantee, or );
(ii) any Taxes to the extent such Taxes are imposed or withheld by reason of the failure of the Holder or beneficial owner of this Note, following the Issuers’ written request addressed to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements (to the extent such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for do so), whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the Issuerrate of deduction or withholding of, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(iii) any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to Guarantee;
(iv) any Tax imposed on interest or with respect to any payment by any of the United States Issuers or any political subdivision Guarantors to the Holder if such Holder is a fiduciary or governmental authority thereof partnership or therein by reason of any Person other than the sole beneficial owner holding or owning, actually or constructively, 10% or more of such payment to the total combined voting power extent that such Taxes would not have been imposed on such payment had such beneficial owner been the holder of all classes of stock of the Issuer or any Guarantor entitled to vote, such Note;
(iivi) any Tax that is imposed on interest or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union or the United States Kingdom;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had this Note been presented on the last day of such 30-day period);
(viii) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 as of the Issue Date (or any political subdivision amended or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation successor version that is a related person within the meaning of substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 864(d)(41471(b)(1) of the Internal Revenue Code of 1986, 1986 as amended of the Issue Date (the “Code”) with respect to the Issuer or any Guarantoramended or successor version described above), and including (iiifor the avoidance of doubt) any Tax imposed on interest by intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or foregoing; or
(ivix) any United States federal tax imposed pursuant to FATCAcombination of the foregoing.
(c) The Issuers and the Guarantors, if the applicable withholding agents, shall (vi) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or .
(d) At least 30 calendar days prior to each date on which any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note Guarantee is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer Issuers or a any Guarantor will shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to this Note or any such paymentGuarantee is due and payable, in which case it will be promptly thereafter), the Issuer will promptly furnish Issuers shall deliver to the Trustee and Trustee, with a copy to the Paying Agent, if other than the Trustee, with an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set setting forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 of the Indenture stating that such Additional Amounts andwill be payable and describing the obligation to pay such amounts. In addition, if paid the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (i) the execution, issue, delivery or registration of this Note or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, this Note or any Guarantee. Upon written request, any of the Issuers or a Paying Agent Guarantor will furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or such Guarantor (as the case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02 of the Indenture, in such form as provided in the normal course by the taxing authority imposing such Taxes. If, notwithstanding the efforts of such Issuer or Guarantor to obtain such receipts, the same are not obtainable, such Issuer or such Guarantor will provide the Trustee or such Holder with other than evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, shall promptly the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee with documentation evidencing such information as may be reasonably available to such Issuers and the Guarantors (and not otherwise in the possession of the Trustee) to enable the determination of the amount of any withholding taxes attributable to any particular Holder(s).
(e) Whenever the Indenture or this Note refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to this or any other Note (including payments thereof made pursuant to a Guarantee), such reference includes the payment of Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph , if applicable.
(f) This paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References Indenture and shall apply mutatis mutandis to any jurisdiction (other than the United States, any state thereof or the District of Columbia) in this Paragraph 2 which any successor Person to any of the Issuer Issuers or Guarantors is organized, resident or doing business for tax purposes or any Guarantor shall apply jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on this or any other Note (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to any successor(s) theretotax.
Appears in 1 contract
Sources: Indenture (Ardagh Group S.A.)
Additional Amounts. All The Issuer, which shall include any Successor Company (as such term is defined in Section 5.01(a)(i)), shall make all its payments made under or with respect to this the Securities and each Note Guarantor, which shall include any Successor Guarantor (as such term is defined in Section 5.01(b)(i)), shall make all payments under or with respect to the Indenture or pursuant to any Note Guarantee must be made Guarantees free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter "Taxes") imposed or levied by or on behalf of the (1) government of the United States, Germany, Luxembourg, the United Kingdom Cayman Islands or any political subdivision or governmental any authority or agency therein or thereof or therein having the power to tax, (2) or within any other jurisdiction in which it is organized or is otherwise resident for tax purposes or any jurisdiction from or through which payment on is made (each a "Relevant Taxing Jurisdiction"), unless the Notes Issuer or any Note Guarantee is madeGuarantor, or any political subdivision or governmental authority thereof or therein having as the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposescase may be, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencythereof. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a any Note Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes Securities or any the Note GuaranteeGuarantees, the Issuer or such Guarantor, as the case may be, will be required to applicable Note Guarantor shall pay such amount additional amounts (such amount the “"Additional Amounts”") as may be necessary so that the net amount received by each Holder (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will shall not be less than the amount such holder Holder would have received if such Taxes had not been withheld or deducted; provided, however, that no the foregoing obligation to pay Additional Amounts will be payable with respect shall not apply to payments made to (1) any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to that would not have been connected with so imposed but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust or corporation) and the Relevant Taxing Jurisdiction, Jurisdiction (other than by the acquisition, ownership, holding or disposition mere receipt of this Note, the enforcement of rights under this Note or under any Note Guarantee such payment or the receipt ownership or holding outside of payments in respect the Cayman Islands of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (Securities but including, without limitation, providing prior to the receipt of any payment on such relevant Holder (or such fiduciary, settlor, beneficiary, member or shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in respect of this Note a trade or any Note Guarantee business therein or having or having had a complete, correct and executed IRS Form W-8 permanent establishment therein); or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i2) any Tax imposed on interest by the United States estate, inheritance, gift, sales, excise, transfer, personal property tax or any political subdivision similar tax, assessment or governmental authority thereof charge; (3) any tax, assessment or therein other governmental charge that is imposed or withheld by reason of any the failure by the Holder or the beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock Securities to comply with a request of the Issuer or any Guarantor entitled Note Guarantor, as the case may be, addressed to votethe Holder (x) to provide information, documents or other evidence concerning the nationality, residence or identity of the Holder or such beneficial owner or (iiy) to make and deliver any Tax imposed on interest declaration or other similar claim (other than a claim for refund of a tax, assessment or other governmental charge withheld by the United States Issuer) or satisfy any political subdivision information or governmental authority thereof reporting requirements, which, in the case of (x) or therein (y), is required or imposed by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) statute, treaty, regulation or administrative practice of the Internal Revenue Code taxing jurisdiction as a precondition to exemption from all or part of 1986such tax, as amended (the “Code”) with respect to the Issuer assessment or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or other governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest charge or (4) any tax, assessment or other amount governmental charge that is payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include otherwise than by withholding from payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principalprincipal of, premium, if any, or interest on such Securities; nor shall the Issuer or other amounts on this any Note is to Guarantor, as applicable, be made (unless an obligation required to pay Additional Amounts arises shortly before (a) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Securities for payment within 30 days after the 30th date on which such payment or such Securities became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the holder would have been entitled to Additional Amounts had the Securities been presented on the last day prior to of such date, in which case it shall be promptly thereafter30-day period), (b) if, at the election of the relevant Holder, the payment of principal of (or premium, if the Issuer any, on) or a Guarantor will be obligated to pay Additional Amounts interest on such Securities could have been made through another paying agent without such deduction or withholding, or (c) with respect to any payment of principal of (or premium, if any, on) or interest on such Securities to any Holder who is a fiduciary, partnership or limited liability company that is treated as a partnership for U.S. federal income tax purposes or any person other than the sole beneficial owner of such payment, to the Issuer will promptly furnish extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or limited liability company that is treated as a partnership for U.S. federal income tax purposes or the Trustee and beneficial owner of such payment would not have been entitled to the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and had such beneficiary, settlor, member or beneficial owner been the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment actual holder of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) theretoSecurities.
Appears in 1 contract
Sources: Indenture (Seagate Technology Malaysia Holding Co Cayman Islands)
Additional Amounts. (a) All payments made that the Issuer makes under or with respect to this Note or that the Subsidiary Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present pre-sent or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, "Taxes" or "Tax") imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom federal government of Canada or by or within any province or political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) within any other jurisdiction in which the payor is Issuer, the Subsidiary Guarantors or any Surviving Entity are organized or otherwise considered to be a resident or engaged in business for tax purposespurposes or from or through which payment is made (each, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “"Relevant Taxing Jurisdiction”"), collectively, “Taxes”, unless the IssuerIssuer or the Subsidiary Guarantors, relevant Guarantor or other applicable withholding agent is as the case may be, are required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so the Subsidiary Guarantors are required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guaranteethis Note, the Issuer or such Guarantorthe Subsidiary Guarantors, as the case may be, will be required to shall pay such amount additional amounts (such amount the “"Additional Amounts”) as "), to the extent they may be necessary lawfully do so, so that the net amount received by each Holder (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will shall not be less than the amount such holder the Holder would have received if such Taxes had not been withheld or deducted; provided.
(b) Notwithstanding the foregoing, however, that no neither the Issuer nor the Subsidiary Guarantors shall pay Additional Amounts will be payable with respect to payments made to any holder a Holder or beneficial owner of this Note to the extent such that the Taxes are imposed or levied:
(i) by a Relevant Taxing Jurisdiction by reason of (i) such holder the Holder's or beneficial owner being considered to be owner's present or to have been connected former connection with a such Relevant Taxing Jurisdiction, Jurisdiction (other than by the acquisition, ownership, mere receipt or holding or disposition of this Note, Note or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or Indenture); or
(ii) such holder by reason of the failure of the Holder or beneficial owner not completing of this Note, prior to the relevant date on which a payment under and with respect to the Notes is due and payable (the "Relevant Payment Date") to comply with the Issuer's written request addressed to the Holder at least 30 calendar days prior to the Relevant Payment Date to provide accurate information with respect to any procedural formalities that it certification, identification, information or other reporting requirements which the Holder or such beneficial owner is legally eligible required to complete and are necessary for satisfy, whether imposed by statute, treaty, regulation or administrative practice, in each such case by the IssuerRelevant Taxing Jurisdiction, Guarantors as a precondition to exemption from, or other applicable reduction in the rate of deduction or withholding agent to make or obtain authorization to make payments without such of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior to a certification that the receipt of any payment on Holder or beneficial owner is not resident in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another the Relevant Taxing Jurisdiction). Further, no .
(c) The Issuer's and the Subsidiary Guarantors' obligation to pay Additional Amounts or to reimburse a Holder for Taxes paid by such Holder in respect of Taxes shall be payable not apply with respect to to:
(i) any Tax imposed on interest by the United States estate, inheritance, gift, sale, transfer, personal property or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, similar Taxes;
(ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) payable otherwise than by deduction or withholding from payments made under or with respect to the Issuer or any Guarantor, this Note;
(iii) any Tax Taxes imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies the Subsidiary Guarantors to the Trustee. Wherever in Holder if such Holder is a fiduciary or partnership or person other than the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) sole beneficial owner of such payment to the payment extent that Taxes would not have been imposed on such Holder had such Holder been the sole beneficial owner of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, ;
(3) interest or (4iv) any other amount payable Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting this Note to another paying agent in a member state of the European Union;
(v) any such withholding or deduction in respect of any Taxes imposed on a payment to an individual that is required to be made pursuant to any EU Directive on the taxation of savings implementing the conclusions of the ECOFIN Council meeting of 26th-27th November 2000 or any Note Guaranteelaw implementing or complying with, or introduced in order to conform to, such reference shall be deemed to include payment Directive; or
(vi) any combination of Additional Amounts as described under this heading to the extent that(i), in such context(ii), Additional Amounts are(iii), were or would be payable in respect thereof. (iv) and (v).
(d) At least 30 calendar days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on with respect to this Note is due and payable, if the Issuer or the Subsidiary Guarantors shall be obligated to be made pay Additional Amounts with respect to such payment (unless an such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such datethe date on which payment under or with respect to the Notes is due and payable, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated the Subsidiary Guarantors shall deliver to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Officer's Certificate stating that such Additional Amounts will shall be payable and the amounts so payable, payable and will shall set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer or shall promptly publish a Guarantor (as applicable) will pay to the Trustee or the Paying Agent press release stating that such Additional Amounts andshall be payable and describing its obligation to pay such amounts.
(e) Whenever this Note refers to, if paid to a Paying Agent other than the Trusteein any context, shall promptly provide the Trustee with documentation evidencing the payment of principal, interest, if any, or any other amount payable under or with respect to this Note, such payment shall also include the payment of Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) theretoif applicable.
Appears in 1 contract
Sources: Indenture (TMM Lines LTD LLC)
Additional Amounts. (a) All payments made that the Issuers make under or with respect to this Note the Notes or that the Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments by or on behalf of the any jurisdiction (1) other than the United States, Germanyany state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, Luxembourgresident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the United Kingdom Paying Agent) makes any payment on the Notes or by or within any department, political subdivision or governmental authority thereof of or therein in any of the foregoing having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant such Issuer or Guarantor or other applicable withholding agent agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the either Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note Guarantee, the such Issuer or such Guarantor, as the case may be, will be required to shall pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder beneficial owner of the Notes after such withholding or deduction (including any withholding or deduction on such in respect of any Additional Amounts) will not be less than the amount such holder the beneficial owner would have received if such Taxes had not been withheld or deducted; provided.
(b) None of the Issuers or Guarantors shall, however, that no pay Additional Amounts will be payable with in respect to payments made to or on account of:
(i) any holder Taxes, to the extent such Taxes are imposed or levied by a Relevant Taxing Jurisdiction by reason of (i) such holder the Holder’s or beneficial owner being considered to be owner’s present or to have been connected former connection with a such Relevant Taxing Jurisdiction, Jurisdiction (other than by the acquisitionmere receipt, ownership, holding or disposition of this Notethe Notes, or by reason of the receipt of any payments in respect of any Notes or any Guarantee, or the exercise or enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note Notes or any Note Guarantee, or );
(ii) any Taxes to the extent such Taxes are imposed or withheld by reason of the failure of the Holder or beneficial owner of the Notes, following the Issuers’ written request addressed to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements (to the extent such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuerdo so), Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form whether required by another statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction). FurtherTaxing
(iii) any estate, no Additional Amounts shall be inheritance, gift, sales, transfer, personal property or similar Taxes;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes or any Guarantee;
(iv) any Tax imposed on interest or with respect to any payment by any of the United States Issuers or any political subdivision Guarantors to the Holder if such Holder is a fiduciary or governmental authority thereof partnership or therein by reason of any Person other than the sole beneficial owner holding or owning, actually or constructively, 10% or more of such payment to the total combined voting power extent that such Taxes would not have been imposed on such payment had such beneficial owner been the holder of all classes of stock of the Issuer or any Guarantor entitled to vote, such Note;
(iivi) any Tax that is imposed on interest or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the United States relevant Notes to another paying agent in a member state of the European Union;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period);
(viii) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 as of the Issue Date (or any political subdivision amended or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation successor version that is a related person within the meaning of substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 864(d)(41471(b)(1) of the Internal Revenue Code of 1986, 1986 as amended of the Issue Date (the “Code”) with respect to the Issuer or any Guarantoramended or successor version described above), and including (iiifor the avoidance of doubt) any Tax imposed on interest by intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or foregoing; or
(ivix) any United States federal tax imposed pursuant to FATCAcombination of the foregoing.
(c) The Issuers and the Guarantors, if the applicable withholding agents, shall (vi) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor .
(as applicabled) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 calendar days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on this Note with respect to the Notes or any Guarantee is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer Issuers or a any Guarantor will shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or any such paymentGuarantee is due and payable, in which case it will be promptly thereafter), the Issuer will promptly furnish Issuers shall deliver to the Trustee and Trustee, with a copy to the Paying Agent, if other than the Trustee, with an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set setting forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including, without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (i) the execution, issue, delivery or registration of the Notes or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, the Notes or any Guarantee. Upon written request, any of the Issuers or a Guarantor (as applicable) will pay furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or Guarantor (as the Paying Agent case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02, in such Additional Amounts andform as provided in the normal course by the taxing authority imposing such Taxes. If, if paid notwithstanding the efforts of such Issuer or Guarantor to a Paying Agent obtain such receipts, the same are not obtainable, such Issuer or Guarantor will provide the Trustee or such Holder with other than evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, shall promptly the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee with documentation evidencing such information as may be reasonably available to such Issuer and the Guarantors (and not otherwise in the possession of the Trustee) to enable determination of the amount of any withholding Taxes attributable to any particular Holder(s).
(e) Whenever this Indenture or the Notes refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note (including payments thereof made pursuant to a Guarantee), such reference includes the payment of Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 , if applicable.
(f) This Section 4.12 will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction (other than the Indenture. References United States, any state thereof or the District of Columbia) in this Paragraph 2 which any successor Person to any of the Issuer Issuers or Guarantors is organized, resident or doing business for tax purposes or any Guarantor shall apply jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on the Notes (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to any successor(s) theretotax.
Appears in 1 contract
Sources: Indenture (Ardagh Group S.A.)
Additional Amounts. All payments made by the Company and the Guarantors under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must Notes and the Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment assessment, or other governmental charge of whatever nature (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom any government or any political subdivision or governmental territory or possession of any government or authority or agency or authority therein or thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Taxing Authority”) in any jurisdiction in which the Company or any Guarantor (including their permitted successors and assigns) is then incorporated, engaged in business or resident for tax purposes or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, ) unless the Issuer, relevant Company or the Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law Law or by the relevant Taxing Authority’s interpretation or administration thereof by the relevant government authority or agencythereof. If the Issuer, a Guarantor Company or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, Guarantees (as the case may be), the Company or the Guarantors (as the case may be) will be required to pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so that the net amount received by each Holder of the Notes (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than equal to the amount such holder the Holder of the Notes would have received if such Taxes had not been withheld or deducted; provided, however, provided that no Additional Amounts will be payable with respect to payments a payment made to any holder a Holder of the Notes (an “Excluded Holder”) to the extent extent:
(A) any such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to would not have been connected with a imposed but for the existence of any present or former connection between such Holder of the Notes and the Relevant Taxing Jurisdiction, other Jurisdiction imposing such Taxes otherwise than merely by the acquisition, ownership, holding ownership or disposition of this Note, such note or receiving any payment in respect thereof or the exercise or enforcement of any rights under this Note or under any Note Guarantee the Notes or the receipt Guarantees; or
(B) such Holder of payments the Notes would not have been liable for or subject to such withholding or deduction on account of such Taxes but for the failure to make a valid declaration of non-residence or similar claim for exemption or to provide information concerning nationality, residence or connection with the Relevant Taxing Jurisdiction if the making of such declaration or claim or provision of such information is required or imposed by statute, treaty, regulation, ruling or administrative practice of a Taxing Authority of the Relevant Taxing Jurisdiction as a pre-condition to an exemption from, or reduction in, such Taxes; or
(C) such Holder of the Notes would have been able to avoid such Taxes by presenting the relevant note to another Paying Agent in respect a member state of this Note the European Union (as constituted on the Issue Date) or in the United States; or
(D) any such Taxes would not have been imposed but for the presentation by the Holder of such note (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due or payable or was duly provided for, whichever is later; or
(E) where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any Note Guaranteeother Directive implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(iiF) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect combination of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdictionthe immediately preceding clauses (A) to (E) (inclusive). FurtherIn addition, no Additional Amounts shall will not be payable with respect to any estate, inheritance, gift, sales, transfer, personal property or any similar tax, assessment or other governmental charge with respect to such Notes or with respect to any Tax which is payable otherwise than by deduction or withholding from payments of principal of, premium or discount, if any, or interest on the Notes. The Company or the Guarantors (as the case may be) will also:
(i) make any Tax imposed on interest by the United States required withholding or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, deduction; and
(ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required Taxing Authority in accordance with applicable lawLaw. The Issuer Company or any Guarantor the Guarantors (as applicablethe case may be) will use commercially make reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction Authority imposing such Taxes and Taxes. The Company or the Guarantors (as the case may be) will provide such certified copies use reasonable efforts to furnish to the Holders of the Notes (with a copy to the Trustee. Wherever in ), within 30 days after the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) date the payment of principalany Taxes so deducted or withheld is due pursuant to applicable Law, either certified copies of tax receipts evidencing such payment by the Company or the Guarantors (2as the case may be) purchase prices in connection with a purchase or, if such receipts are not obtainable, other evidence of Notes under such payments by the Indenture Company or this Note, the Guarantors (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofcase may be). At least 30 days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on this Note with respect to the Notes is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer Company or a Guarantor the Guarantors (as the case may be) will be obligated obliged to pay Additional Amounts with respect to any such payment, the Issuer Company or the Guarantors (as the case may be) will promptly furnish deliver to the Trustee and the Principal Paying Agent, if other than the Trustee, with Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable, payable and will set forth such other information necessary to enable the Trustee or the Paying Agent on behalf of the Trustee to pay such Additional Amounts to the holders Holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts andWhenever in this Note there is mentioned, if paid to a Paying Agent other than the Trusteein any context, shall promptly provide the Trustee with documentation evidencing the payment of such amounts based upon the principal of, premium, interest or any other amount payable under or with respect to any of the Notes, this includes payment of any Additional Amounts. Copies of such documentation shall Amounts that may be made available to the holders upon requestapplicable. The foregoing obligations in this Paragraph 2 provisions will survive any termination, defeasance or discharge of the Indenture. References Notes and shall apply mutatis mutandis to any jurisdiction in this Paragraph 2 which any successor Person to the Issuer Company or a Guarantor, as the case may be, is organized, engaged in business, resident for tax purposes, or otherwise subject to taxation on a net income basis or any Guarantor shall apply to any successor(s) theretopolitical sub-divisions or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Guarantee Agreement (Central European Distribution Corp)
Additional Amounts. All payments made under by Moore or with any other Guarantor organized in Canada ("Canadian Guarantor") ▇▇▇h respect to this Note under the Indenture or pursuant to any Note its Guarantee must will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant such Canadian Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencythereof. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Canadian Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note its Guarantee, the Issuer or such Guarantor, as the case may be, Canadian Guarantor will be required to pay such amount additional amounts (such amount the “"Additional Amounts”") as may be necessary so that the net amount received by each holder of Notes (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such the holder would have received if such Taxes had not been withheld or deducted; provided, however, provided that no Additional Amounts will be payable with respect to payments a payment made to a holder of Notes (an "Excluded Holder") (i) with which Canadian Guarantor does not deal at arm's length (within the meaning of the Income Tax Act (Canada)) at the time of making such payment or at the time that any holder such payment is deemed to the extent such be paid or credited or (ii) which is subject to Taxes are imposed by reason of (i) such holder or beneficial owner its being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other Canada or any province or territory thereof otherwise than by the mere acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee Notes or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction)thereunder. Further, no Additional Amounts shall be payable with respect to Canadian Guarantor will also (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) Moore will use commercially reasonable efforts furnish to obtain certified copies the Trustee within 30 days after the date of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) ▇▇▇▇ent of any Taxes so deducted or withheld from due pursuant to applicable law a certification that such payment has been made. Moore will indemnify and hold harmless each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase holder of Notes under (other tha▇ ▇▇ Excluded Holder), and upon written request of any holder of Notes (other than an Excluded Holder), reimburse each such holder for the Indenture or this Note, amount of (3) interest or (4i) any other amount payable on Taxes so levied or imposed and paid by such holder as a result of payments made under or with respect to this Note or a Canadian Guarantor Guarantee; (ii) any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if anyliability (including penalties, interest and expense) arising therefrom or other amounts on this Note is to be made with respect thereto, and (unless an obligation to pay Additional Amounts arises shortly before iii) any such Taxes so levied or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts imposed with respect to any reimbursement under the foregoing clause (i) or (ii) so that the net amount received by such payment, the Issuer holder after such reimbursement will promptly furnish the Trustee and the Paying Agent, if other not be less than the Trustee, with an Officers’ Certificate stating that net amount the holder would have received if Taxes on such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) theretoreimbursement had not been imposed.
Appears in 1 contract
Sources: Indenture (Moore Corporation LTD)
Additional Amounts. All payments made under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, or interest or other amounts on this Note the Notes is to be made (unless an such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts pursuant to Paragraph 2 of the Notes (the “Additional Amounts”) with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders Holders upon request. The Issuer and the Guarantors, jointly and severally, shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or expense incurred without negligence or willful misconduct on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished to them pursuant to this Section 4.12. The Issuer and each Guarantor (as applicable) will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer and each Guarantor (as applicable) will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copy to the Trustee. If the Issuer or the Guarantors conduct business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than a Relevant Taxing Jurisdiction and, as a result, are required by the law of such Additional Taxing Jurisdiction to deduct or withhold any amount on account of taxes imposed by such Additional Taxing Jurisdiction from payments under the Notes which would not have been required to be so deducted or withheld but for such conduct of business in such Additional Taxing Jurisdiction, the Additional Amounts provision described above shall be considered to apply to such Holders as if references in such provision to “Taxes” included taxes imposed by way of deduction or withholding by any such Additional Taxing Jurisdiction (or any political subdivision thereof or taxing authority therein). The Issuer will pay any stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in any Relevant Taxing Jurisdiction from the execution, delivery and registration of Notes upon original issuance and initial resale of the Notes or any other document or instrument referred to therein, or in connection with any payment with respect to, or enforcement of, the Notes or any Note Guarantee or any other document or instrument referred to therein. If at any time the Issuer changes its place of organization to outside of the United States or there is a new issuer organized outside of the United States, the Issuer or new issuer, as applicable, will pay any stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in the jurisdiction in which the Issuer or new issuer is organized (or any political subdivision thereof or therein) and are payable by the Holders of the Notes in respect of the Notes or any Note Guarantee or any other document or instrument referred to therein under any law, rule or regulation in effect at the time of such change or thereafter. The foregoing obligations in of this Section 4.12 and Paragraph 2 of the Notes will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 Indenture and will apply mutatis mutandis to any successor Person to the Issuer or the Guarantors. Wherever in this Indenture or the Notes or any Guarantor shall apply Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or the Notes, (3) interest or (4) any other amount payable on or with respect to any successor(s) theretoof the Notes or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described in this Section 4.12 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 1 contract
Additional Amounts. All (a) The Company and any Subsidiary Guarantor are required to make all payments made under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must be made on the Notes free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or on behalf of the (1) government of the United States, Germany, Luxembourg, country in which the United Kingdom Company or Subsidiary Guarantor and any successor thereof is organized or incorporated or any political subdivision or governmental any authority or agency therein or thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor Company or any Subsidiary Guarantor is organized or otherwise considered to be a resident or engaged in business for tax purposespurposes or the jurisdiction of any Paying Agent (each, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Company or a Subsidiary Guarantor or other applicable withholding agent Paying Agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. thereof.
(b) If the IssuerCompany, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer any Subsidiary Guarantor, or a Guarantor Paying Agent is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes Notes, the Company or any Note Guarantee, the Issuer or such Guarantor, as the case may be, Subsidiary Guarantor will be required to pay such amount additional amounts (such amount the “Additional Amounts”) with respect to the Notes as may be necessary so that the net amount received by any Holder or beneficial owner (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder Holder or beneficial owner would have received if such Taxes had not been withheld or deducted; provided, however, that no the foregoing obligation to pay Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of does not apply to:
(i) such any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant Holder or beneficial owner and the Relevant Taxing Jurisdiction (including a connection between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant holder or beneficial owner, if the relevant holder or beneficial owner is an estate, nominee, trust, partnership or corporation, and the Relevant Taxing Jurisdiction) including, without limiting the generality of the foregoing, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, partner, member, shareholder, or possessor) of the Notes being considered or having been a citizen, resident, or national thereof or being or having been present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(ii) any estate, inheritance, gift, sales, transfer or personal property tax or similar Taxes;
(iii) any withholding or deduction in respect of the Notes (a) presented for payment by or on behalf of a Holder or beneficial owner who would have been able to be avoid such withholding or deduction by presenting the relevant note to any other paying agent, or (b) where the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the notes for payment within 30 days after the date on which such payment on the notes became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the holder or beneficial owner would have been entitled to Additional Amounts had the notes been presented on the last day of such 30-day period);
(iv) any Taxes imposed with respect to any payment of principal (or premium, if any) or interest on the Notes by the Company or any Subsidiary Guarantor to any Holder or beneficial owner who is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder or beneficial owner of such Notes;
(v) any Taxes that are payable other than by deduction or withholding from payments made under or with respect to the Notes;
(vi) any Taxes that would not have been imposed but for the failure of the Holder and/or beneficial owner (a) to comply with the Company’s or the Paying Agent’s request in writing at least 30 days before any withholding for such Taxes to the Holder to provide certification, documentation, information or other evidence concerning the nationality, residence, entitlement to treaty benefits, identity, direct or indirect ownership of or investment in the Notes, or connection with the Relevant Taxing Jurisdiction of the Holder and/or beneficial owner of such Notes, or (b) to make any valid or timely declaration or similar claim or satisfy any other reporting requirement or to have been connected with a provide any information relating to such matters, whether required or imposed by statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction, other than as a precondition to exemption from, or reduction in the rate of withholding or deduction of, Taxes imposed by the acquisition, ownership, holding Relevant Taxing Jurisdiction;
(vii) any Taxes that are required to be deducted or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of withheld from any payment on under or in respect of this Note the Notes as a consequence of the Holder or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding of Notes or owning, actually or constructively, 10% or more the recipient of the total combined voting power of all classes of stock of interest payable on the Issuer or any Guarantor entitled to vote, Notes not dealing at arm’s length (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended Income Tax Act (the “Code”Canada)) with respect to the Issuer Company or any Guarantor, Subsidiary Guarantor at the time of making any such payment;
(iiiviii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is Taxes that are required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so be deducted or withheld from each Relevant Taxing Jurisdiction imposing such any payment under or in respect of the Notes as a consequence of the Holder or beneficial owner of the Notes being at any time a ‘‘specified non-resident shareholder’’ (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Company or at any time not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with a “specified shareholder” (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Company or as a consequence of the payment being deemed to be a dividend under the Income Tax Act (Canada);
(ix) any Taxes and will provide such certified copies to payable under section 1471 through 1474 of the Trustee. Wherever in the Indenture, this Note Code (or any Note Guarantee there are mentionedsuccessor or amended versions thereof), any regulations or other official guidance thereunder, or any agreement (including any intergovernmental agreement or any law implementing such governmental agreement) entered into in connection therewith (“FATCA”);
(x) any contextTaxes or penalties arising from the Holder’s or beneficial owner’s failure to comply with the Holder’s or beneficial owner’s obligations imposed under Part XVIII of the Income Tax Act (Canada), the Canada-United States Enhanced Tax Information Exchange Agreement Implementation Act (Canada) or the similar provisions of legislation of any other jurisdiction that has entered into an agreement with the United States of America to provide for the implementation of FATCA based reporting; or
(xi) any combination of, or any Taxes arising from a combination of the factors described in, (1i) the payment of principal, to (2x) purchase prices in connection with a purchase of Notes under the Indenture or this Note, above.
(3c) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 calendar days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on this Note with respect to the Notes is to be made due and payable (unless an such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer Company or a any Subsidiary Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer Company will promptly furnish deliver to the U.S. Trustee and paying agent for the Paying Agent, if other than the Trustee, with affected Notes an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable, payable and will set forth such other information necessary to enable the U.S. Trustee or paying agent, as the Paying Agent case may be, to pay such Additional Amounts to the holders Holders and beneficial owners of such Notes on the payment date. Each such Officers’ Certificate shall be relied upon until receipt of a further Officers’ Certificate addressing such matters.
(d) The Issuer Company or a the applicable Subsidiary Guarantor will also (as applicablei) will pay make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will provide the U.S. Trustee or the Paying Agent such Additional Amounts andwith official receipts or, if paid notwithstanding the efforts of the Company official receipts are not obtainable, other documentation reasonably satisfactory to a Paying Agent other than the U.S. Trustee, shall promptly provide the Trustee with documentation evidencing the payment of any Tax so deducted or withheld for each Relevant Taxing Jurisdiction imposing such Additional AmountsTaxes. Copies The Company will attach to each official receipt or other documentation a certificate stating (x) that the amount of such Tax evidenced by the official receipt or other documentation shall be was paid in connection with payments in respect of the principal amount of such Notes then outstanding and (y) the amount of such Tax paid per $1,000 of principal amount of such Notes.
(e) Whenever reference is made available in this Indenture, in any context, to (i) the payment of principal, (ii) redemption prices or purchase prices in connection with a redemption or purchase of Notes, (iii) interest or (iv) any other amount payable on or with respect to the holders upon request. Notes, such reference will be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are or would be payable in respect thereof.
(f) The foregoing Company will pay any present or future stamp, court, documentary or other similar taxes, charges or levies that arise in any jurisdiction from the execution, delivery or registration of, or enforcement of rights under, this Indenture or any related document.
(g) The obligations in described under this Paragraph 2 Section 2.13 will survive any termination, defeasance or discharge of the Indenture. References this Indenture and will apply mutatis mutandis to any jurisdiction in this Paragraph 2 which any successor Person to the Issuer Company or any Subsidiary Guarantor is organized or any political subdivision or taxing authority or agency thereof or therein.
(h) The Company and the Subsidiary Guarantors shall apply indemnify and hold harmless the Trustees for the amount of any Taxes in respect of which the Company, or any Subsidiary Guarantor, is required to pay Additional Amounts pursuant to Section 2.13(b) that are levied or imposed and paid by the Trustees as a result of payments made under or with respect to the Notes or any successor(s) theretoSubsidiary Guarantee, including any reimbursements under this clause 2.13(h).
Appears in 1 contract
Sources: Indenture (Open Text Corp)
Additional Amounts. All payments made under of principal, premium, if any, and interest by or with respect to this Note under on behalf of the Indenture or Company pursuant to any Note Guarantee must the terms of the Securities shall be made free and clear of of, and without deduction or withholding for or on account of, any present or future taxes, duties, assessments or other governmental charges of whatsoever nature required to be deducted or withheld by the United States, any state thereof or the District of Columbia, or any other jurisdiction through which payment on the Securities is made, or any political subdivision or taxing authority therein or thereof (a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law. In the event any withholding or deduction on payments in respect of the Securities for or on account of any present or future tax, dutyassessment or other governmental charge is required to be deducted or withheld by a Relevant Taxing Jurisdiction, levythe Company shall remit the full amount required to be deducted or withheld to the relevant authority in accordance with applicable law and pay such additional amounts (the “Additional Amounts”) so that every net payment of the principal of, impostpremium, if any, and interest on the Securities will result in receipt by each Holder of the Securities of such amounts (after all such withholding or deduction, including on any additional amounts) as would have been received had no such withholding or deduction been required. The Company will not be required, however, to make any payment of Additional Amounts for or on account of:
A. any tax, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) that would not have been imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business but for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder the existence of any present or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, former connection (other than by a connection arising solely from the acquisitionownership of those Securities, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note those Securities or any Note Guaranteeexercise or enforcement of rights under the Securities) between the Holder of the Securities (or beneficial owner of the Securities), or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, that Holder or beneficial owner (if that Holder or beneficial owner is an estate, trust, partnership or corporation) and the Relevant Taxing Jurisdiction, including that Holder or beneficial owner, or that fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident or treated as a resident of a Relevant Taxing Jurisdiction or being or having been engaged in trade or business or present in the Relevant Taxing Jurisdiction or having had a permanent establishment in the Relevant Taxing Jurisdiction or (ii) such holder the presentation of a Security for payment on a more than 30 days after the later of the date on which that payment becomes due and payable and the date on which payment is duly provided for;
B. any payment to a Holder of the Securities that is not the sole beneficial owner of the Securities, or a portion thereof, or that is a fiduciary or partnership, but only to the extent that a beneficiary or settlor with respect to the fiduciary, or member of the partnership or beneficial owner would not completing have been entitled to the payment of any procedural formalities such Additional Amounts had the beneficiary, settlor, member or beneficial owner received directly its beneficial or distributive share of the payment;
C. any estate, inheritance, gift, sales, transfer, capital gains, excise, personal property, wealth or similar tax, assessment or other governmental charge;
D. any tax, assessment or other governmental charge imposed by reason of the beneficial owner’s or Holder’s past or present status as a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or a personal holding company with respect to the United States or as a corporation that accumulates earnings to avoid U.S. federal income tax; E. any tax, assessment or other governmental charge which is payable otherwise than by withholding or deducting from payment of principal of or premium, if any, or interest on such Securities;
F. any tax, assessment or other governmental charge which would not have been imposed but for the failure of a beneficial owner or any Holder of Securities to comply (to the extent that it is legally eligible able to complete and are necessary for the Issuerdo so) with a request to satisfy certification, Guarantors information, documentation or other applicable withholding agent reporting requirements concerning the nationality, residence, identity or connections with the Relevant Taxing Jurisdiction of the beneficial owner or any Holder of Securities (including, but not limited to, the requirement to make provide Internal Revenue Service Forms W-8BEN, W-8BEN-E, W-8ECI, W-9 or obtain authorization to make payments without such Taxes (any subsequent versions thereof or successor thereto, and including, without limitation, providing prior to the receipt of any payment on documentation requirement under an applicable income tax treaty);
G. any tax, assessment or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax other governmental charge imposed on interest by the United States States, any state thereof or the District of Columbia (or any political subdivision or governmental taxing authority thereof therein or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (iithereof) any Tax imposed on interest received by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being (1) a controlled foreign corporation that is a related person within the meaning of 10 percent shareholder (as defined in Section 864(d)(4871(h)(3)(B) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) with respect of the Company, or (2) a controlled foreign corporation that is related to the Issuer Company within the meaning of Section 864(d)(4) of the Code, or (3) a bank receiving interest described in Section 881(c)(3)(A) of the Code, to the extent such tax, assessment or other governmental charge would not have been imposed but for the beneficial owner’s status as described in subparagraphs (1) through (3) of this paragraph (G);
H. any tax, assessment or other governmental charge required to be withheld or deducted under Sections 1471 through 1474 of the Code (commonly referred to as “FATCA”), any regulations or other guidance thereunder, or any Guarantor, agreement (iiiincluding any intergovernmental agreement) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer connection therewith; or any Guarantor (as applicable) required to withhold law, regulation or other official guidance enacted in any Taxes will make such withholding jurisdiction implementing FATCA or deduction and remit the full amount deducted an intergovernmental agreement in respect of FATCA; I. any tax, assessment or withheld to the relevant authority as and when required other governmental charge that would not have been imposed but for a change in accordance with applicable law. The Issuer , regulation, or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing administrative or judicial interpretation that becomes effective more than 15 days after the payment by the Issuer becomes due or such Guarantor (as applicable) of is duly provided for, whichever occurs later; or
J. any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge combination of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) theretoabove.
Appears in 1 contract
Sources: Indenture (Boston Scientific Corp)
Additional Amounts. (a) All payments made under or with respect to this Note under the Indenture or pursuant to any Note Debentures and the Debenture Guarantee must shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter "Taxes") imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Company or the Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. thereof.
(b) If the Issuer, a Guarantor Company or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes Debentures or any Note the Debenture Guarantee, the Issuer Company or such Guarantor, as the case may be, will be required to Guarantor shall pay such amount additional amounts (such amount the “"Additional Amounts”") as may be necessary so that the net amount received by the holders (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder the holders would have received if such Taxes had not been withheld or deducted; provided, however, that no the foregoing obligation to pay Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner does not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect apply to (i) any Tax Taxes that would not have been so imposed on interest by but for the United States or any political subdivision or governmental authority thereof or therein by reason existence of any beneficial owner present or former connection between the relevant holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over the relevant holder, if the relevant holder is an estate, nominee, trust or corporation) and the Relevant Taxing Jurisdiction (other than the mere receipt of such payment or the ownership or holding or owning, actually or constructively, 10% or more outside of the total combined voting power Relevant Taxing Jurisdiction of all classes of stock of the Issuer such Debentures); or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States estate, inheritance, gift, sales, excise, transfer, personal property tax or any political subdivision similar tax, assessment or governmental authority thereof charge; nor shall the Company or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4Guarantor be required to pay Additional Amounts (1) if the payment could have been made without such deduction or withholding if the beneficiary of the Internal Revenue Code payment had presented the Debenture for payment within 30 days after the date on which such payment or such Debentures became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the holder would have been entitled to Additional Amounts had the Debentures been presented on the last day of 1986such 30 day period), as amended or (the “Code”2) with respect to the Issuer any payment of principal of (or premium, if any, on) or interest on such Debentures to any holder who is a fiduciary or partnership or any Guarantor, (iii) any Tax imposed on interest by person other than the United States or any political subdivision or governmental authority thereof or therein by reason of any sole beneficial owner being of such payment, to the extent that a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade beneficiary or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) settlor with respect to German tax residents any Tax withheld by such fiduciary, a German custodian, who is required to deduct member of such a partnership or the withholding tax from beneficial owner of such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld payment would not have been entitled to the relevant authority as and when required in accordance Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual holder of such Debentures.
(c) Upon request, the Company or the Guarantor shall provide the Trustee with applicable law. The Issuer official receipts or any Guarantor (as applicable) will use commercially reasonable efforts other documentation satisfactory to obtain certified copies of tax receipts the Trustee evidencing the payment by of the Issuer or such Guarantor Taxes with respect to which Additional Amounts are paid.
(as applicabled) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever Whenever in the Indenture, this Note or any Note Guarantee Indenture there are is mentioned, in any context, : (1i) the payment of principal, ; (2ii) purchase prices in connection with a purchase of Notes under the Indenture or this Note, Debentures; (3iii) interest interest; or (4iv) any other amount payable on or with respect to this Note or any Note Guaranteeof the Debentures, such reference shall be deemed to include payment of Additional Amounts as described under provided for in this heading Section 4.10 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment .
(e) The Company or the Guarantor shall pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in any jurisdiction from the execution, delivery, enforcement or registration of principalthe Debentures, premiumthe Debenture Guarantee, if anythis Indenture or any other document or instrument in relation thereof, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts receipt of any payments with respect to the Debentures or the Debenture Guarantee, excluding such taxes, charges or similar levies imposed by any jurisdiction outside of the United Kingdom, the jurisdiction of incorporation of any successor of the Company or any jurisdiction in which a paying agent is located, and we will agree to indemnify the holders for any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that taxes paid by such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. holders.
(f) The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, obligations described under this Section 4.10 shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References this Indenture and shall apply mutatis mutandis to any jurisdiction in this Paragraph 2 which any successor Person to the Issuer Company is organized or any Guarantor shall apply to political subdivision or taxing authority or agency thereof or therein (other than the United States or any successor(s) theretopolitical subdivision or taxing authority thereof).
Appears in 1 contract
Sources: Indenture (Millennium Chemicals Inc)
Additional Amounts. All With respect to any payments made under by the Guarantor of the Notes, the Guarantor will make all payments of principal of, premium, if any, and interest on (whether on scheduled payment dates or with upon acceleration) and the Redemption Price, if any, payable in respect to this Note under the Indenture or pursuant to of any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge (charge, including penalties, interest and other liabilities related thereto) thereto (“Taxes”), imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom Bermuda or any political subdivision other jurisdiction in which the Guarantor is engaged in business, resident for tax purposes or governmental authority thereof or therein having the power generally subject to tax, (2) any jurisdiction from or through which payment tax on the Notes or any Note Guarantee is madea net income basis, or any political subdivision or governmental taxing authority thereof of or therein having in any of the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”foregoing, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof by thereof. To the relevant government authority or agency. If extent that the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for for, or on account of of, such Taxes from any payment made under or with respect to the Notes or any Note GuaranteeNotes, the Issuer or such Guarantor, as the case may be, Guarantor will be required to pay such amount additional amounts (such amount the “Additional Amounts”) ), as may be necessary so that the net amount received by each Holder (including Additional Amounts) received by each holder ), after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder Holder would have received if such Taxes had not been required to be withheld or deducted; provided. As used herein and for purposes of the Original Indenture and the Notes, howeverany reference, that no Additional Amounts will be payable with respect to payments made to in any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, context other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning case of Section 864(d)(4502(1) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Original Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the to payment of principalthe principal (and premium, (2) purchase prices in connection with a purchase of Notes under if any), the Indenture or this NoteRedemption Price, (3) if any, interest or (4) any other amount payable on under or with respect to this Note or any Note GuaranteeNote, such reference shall be deemed to include a reference to the payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable by the Guarantor in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in provisions of this Paragraph 2 will Section 1.09 shall survive any termination, defeasance termination or discharge of the Indenture. References in this Paragraph 2 to Indenture and any Defeasance of the Issuer or any Guarantor shall apply to any successor(s) theretoNotes.
Appears in 1 contract
Sources: First Supplemental Indenture (MF Global Finance North America Inc.)
Additional Amounts. All payments made under or with respect by the Book- ------------------- Entry Depositary pursuant to this Note under the Indenture or pursuant to any Note Guarantee must Agreement shall be made free and clear of and without deduction or withholding or deduction for for, or on account of of, any present or future taxtaxes, dutyduties, levyassessments or governmental charges of whatever nature (collectively, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto"Taxes") ----- imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein any authority having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”"U.K. ---- Tax Authority"), collectively, “Taxes”, unless the Issuer, relevant Guarantor withholding or other applicable deduction of such Taxes is then ------------- required by law. If any such deduction or withholding agent is shall at any time be required to withhold or deduct Taxes by law or on any distributions in respect of the Certificateless Depositary Interests by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect Book-Entry Depositary to the Notes Holder of any payments in respect of principal, redemption price, interest, liquidated damages or any Note Guaranteepremium on the Global Securities, the Issuer Book-Entry Depositary agrees that it shall pay or cause to be paid such Guarantor, as additional amounts (the case may be, will be required to pay such amount (such amount the “"Additional Amounts”") as may be ------------------ necessary so in order that the net amount (including Additional Amounts) amounts received in respect of such payments by each holder the Holder, after such withholding deduction or deduction withholding, shall equal the amounts specified in the Global Securities to which the Holder is entitled (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder subject to the extent limitations contained in the Security, such Taxes are imposed limitations to be applied for these purposes by reason treating the owner of (i) such any interest in the Certificateless Depositary Interests as a holder or beneficial owner being considered for purposes of Section 2 of the Security). Notwithstanding anything to the contrary provided above, the Book-Entry Depositary shall pay or cause to be or to have been connected with a Relevant Taxing Jurisdiction, other than paid any Additional Amounts only out of funds that shall be received by it from the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities Company for that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing purpose. At least 10 days prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each first date on which payment of principal, premium, premium (if any, ) and interest or other amounts on this Note the Certificateless Depositary Interests is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day made, and at least 10 days prior to any subsequent such date, in which case it shall be promptly thereafter), date if the Issuer or a Guarantor will be obligated to pay Additional Amounts there has been any change with respect to any such paymentthe matters set forth in the below- mentioned Officers' Certificate, the Issuer Company will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, Book-Entry Depositary with an Officers’ ' Certificate stating instructing the Book-Entry Depositary whether such payment of principal, premium (if any), or interest on such Certificateless Depositary Interests shall be made to the Holder without withholding for or on account of any tax, assessment or other governmental charge. If any such withholding shall be required, then such Officers' Certificate shall specify the amount required to be withheld on such payments to the Holder and certify that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee Company has paid or the Paying Agent to shall pay such Additional Amounts amounts withheld to the holders on the payment dateappropriate governmental authority or authorities. The Issuer Book- Entry Depositary shall have no responsibility for determining whether the Holder or any owner of a Guarantor (as applicable) will pay Book-Entry Interest is entitled to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation Amounts in accordance with the preceding paragraph, but shall be made available entitled to rely conclusively for this purpose on an Officers' Certificate or on certifications from the Depositary, which need only specify the amount of Additional Amounts payable to the holders upon requestHolder, net of amounts to which the Holder or any owner of a Book-Entry Interest is not entitled in accordance with the preceding paragraph. The foregoing obligations Company shall indemnify the Book-Entry Depositary for, and hold it harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on its part arising out of or in connection with actions taken or omitted by it in reliance on any Officers' Certificate furnished to it pursuant to this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) theretoSection 2.13.
Appears in 1 contract
Sources: Note Depositary Agreement (Texon International PLC)
Additional Amounts. All payments made by or on behalf of any of the Guarantors under or with respect to this the Notes and the Note under the Indenture or pursuant to any Note Guarantee must Guarantees will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other governmental charge charges of whatever nature imposed or levied (including penalties, any penalties and interest and other liabilities related thereto) (“Taxes”) unless the withholding or deduction of such Taxes is then required by law or by the official interpretation or administration thereof. If, with respect to a Guarantor, any withholding or deduction for, or on account of, any Taxes imposed or levied by or on behalf of the (1i) any jurisdiction (other than the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor such Guarantor is organized or otherwise considered to be a resident or then incorporated, organized, engaged in business or resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax or (each ii) any jurisdiction (other than the United States) from or through which payment is made by or on behalf of such Guarantor (each, a “Relevant Taxing Tax Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is will at any time be required to withhold be made from any payments made by or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a such Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any its Note Guarantee, the Issuer including, without limitation, payments of principal, redemption price, purchase price, interest or premium, such Guarantor, as the case may be, Guarantor will be required to pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by each Holder (including payments of Additional Amounts) received by each holder after such withholding or deduction (including any will equal the respective amounts that would have been received in respect of such payments in the absence of such withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducteddeduction; provided, however, that no Additional Amounts will be payable with respect to payments made to to:
(1) any holder to Taxes that would not have been imposed but for the extent Holder or beneficial owner of the Notes being a citizen, resident or national of, incorporated in or carrying on a business in the relevant Tax Jurisdiction in which such Taxes are imposed, or having any other present or former connection with the relevant Tax Jurisdiction in which such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, mere acquisition or holding of any Note or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments payment under or in respect of this any Note or any Note Guarantee, ;
(2) any Taxes imposed or (ii) such holder withheld as a result of the failure of the Holder or beneficial owner not completing of the Notes to comply with any procedural formalities that it written request, made to the Holder or beneficial owner in writing at least 90 days before any such withholding or deduction would be made, by the Issuer or any of the Guarantors to provide timely or accurate information concerning the nationality, residence or identity of such Holder or beneficial owner or to make any valid or timely declaration or similar claim or satisfy any certification information or other reporting requirements (to the extent such Holder or beneficial owner is legally eligible to complete do so), which is required or imposed by a statute, treaty, regulation or administrative practice of the relevant Tax Jurisdiction as a precondition to exemption from all or part of such Taxes;
(3) any Taxes that are imposed or withheld as a result of the presentation of any Note for payment (where Notes are in the form of definitive notes and presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(4) any estate, inheritance, gift, sales, use, transfer, personal property or similar Taxes;
(5) any Taxes which are necessary payable otherwise than by deduction or withholding from payments made under or with respect to any Guarantee;
(6) any Taxes that were imposed with respect to any payment under or with respect to the Notes and the Note Guarantees to any Holder of a Note who is a fiduciary or partnership or Person other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary or a partner of such partnership or a beneficial owner would be required to include such payment in its income under the laws of the relevant Tax Jurisdiction and would not have been entitled to receive payment of the Additional Amounts had the beneficiary, settlor, partner or beneficial owner been the Holder of such Note;
(7) any Taxes that are imposed or withheld pursuant to Sections 1471 through 1474 of the Code, as of the Issue Date (or any amended or successor version of such sections that is substantively comparable and not materially more onerous to comply with), any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing or any law or regulation adopted pursuant to any such intergovernmental agreement, or any agreements entered into pursuant to Section 1471(b)(1) of the Code; or
(8) any combination of items (1) through (7) above. In addition to the foregoing, the Dutch Guarantor will pay and indemnify the Holders for any present or future stamp, issue, registration, transfer, court or documentary taxes, or any other excise, property or similar taxes levied by The Netherlands on or in connection with the Issuerexecution, Guarantors delivery, registration or other applicable withholding agent enforcement of the Note Guarantee provided by the Dutch Guarantor or with respect to make or obtain authorization any payment to make payments without such Taxes a Holder of Notes thereunder (includinglimited, without limitation, providing prior solely in the case of taxes attributable to the receipt of any payment on or in payments with respect of this Note thereto, to any such taxes that are not excluded under clauses (1) through (4) and (6) through (7) or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdictioncombination thereof). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of If the Issuer or any Guarantor entitled becomes aware that any Guarantor will be obligated to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) pay Additional Amounts with respect to any payment under or with respect to any Note Guarantee, the Issuer or any the relevant Guarantor, as the case may be, will deliver to the Trustee on a date at least 30 days prior to the date of payment (iiiunless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate must also set forth any Tax imposed other information reasonably necessary to enable the Paying Agent to pay Additional Amounts on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant relevant payment date. The Trustee shall be entitled to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from rely solely on such interest payments, provided Officer’s Certificate as conclusive proof that this Note is held in custody with such German custodianpayments are necessary. The Issuer or any the relevant Guarantor (as applicable) required will provide the Trustee with documentation reasonably satisfactory to withhold any Taxes the Trustee evidencing the payment of Additional Amounts. The relevant Guarantor will make such all deductions and withholding or deduction of Taxes required by law and will remit the full amount deducted or withheld to the relevant Tax authority as and when required in accordance with applicable law. The Issuer or any relevant Guarantor (as applicable) will use commercially its reasonable efforts to obtain certified copies of tax Tax receipts from each relevant Tax authority evidencing the payment by of any Taxes so deducted or withheld. Upon written request, the Issuer or such relevant Guarantor (as applicable) will furnish to the Holders, within 60 days after the date the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such is made, certified copies of Tax receipts evidencing payment by the Guarantor, or if, notwithstanding such Guarantor’s efforts to the Trusteeobtain receipts, receipts are not obtained, other evidence of payments by such Guarantor. Wherever in the Indenture, Whenever this Note or any Note Guarantee there are mentioned, in any context, (1) Indenture mentions the payment of principalamounts based on the principal amount, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on under, or with respect to this Note or to, any Note Guarantee, such reference mention shall be deemed to include the payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing above obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the this Indenture. References , any transfer by a Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in this Paragraph 2 which any successor Person to the Issuer any Guarantor is then incorporated, organized, engaged in business or resident for tax purposes, or any Guarantor shall apply political subdivision or governmental authority thereof or therein having power to tax or any successor(s) theretojurisdiction from or through which payment is made by or on behalf of any Guarantor.
Appears in 1 contract
Additional Amounts. (a) All payments made that the Company makes under or with respect to this Note the Notes and that any Guarantor makes under the Indenture or pursuant with respect to any Note Guarantee must will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) Taxes imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, any jurisdiction in which either the United Kingdom Company or any Guarantor is incorporated, organized or otherwise resident for tax purposes or from or through which any of the foregoing makes any payment on the Notes or by or within any department or political subdivision or governmental authority thereof or therein having in any of the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein foregoing having the power to tax (each each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor withholding or other applicable withholding agent deduction is then required to withhold or deduct Taxes by law or by the official interpretation or administration thereof by the relevant government authority or agencyof law. If either the Issuer, a Guarantor Company or other applicable withholding agent making a payment on behalf of the Issuer or a any Guarantor is so required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note GuaranteeNotes, the Issuer Company or such Guarantor, as the case may be, will be required to pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount received by each holder or beneficial owner of the Notes (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will be not be less than the amount such the holder or beneficial owner would have received if such Taxes had not been required to be withheld or deducted; provided.
(b) Neither the Company nor any Guarantor will, however, that no pay Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such a holder or beneficial owner being considered to be of Notes in respect or to on account of:
(a) any Taxes that would not have been connected imposed or levied by a Relevant Taxing Jurisdiction but for the holder’s or beneficial owner’s actual or deemed present or former connection with such Relevant Taxing Jurisdiction (other than the mere receipt or holding of Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under the Notes, this Indenture, any Note Guarantee or the Security Documents);
(b) any Taxes that are imposed or withheld by reason of the failure of the holder or beneficial owner of Notes, following the Company’s written request addressed to the holder (and made at a time that would enable the holder or beneficial owner acting reasonably to comply with that request, and in all events at least 30 calendar days before the relevant date on which payment under or with respect to the Notes or any Note Guarantee is due and payable) to comply with any certification or identification requirements, whether required or imposed by statute, regulation or administrative practice of a Relevant Taxing Jurisdiction, other than as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes Relevant Taxing Jurisdiction (including, without limitation, providing prior to a certification that the receipt of any payment on holder or beneficial owner is not resident in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another the Relevant Taxing Jurisdiction). Further, no but in each case only to the extent that the holder or beneficial owner, as the case may be, is legally entitled to provide such certification;
(c) any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(d) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes;
(e) any Tax imposed on or with respect to any payment by the Company or a Guarantor to the holder if such holder is a fiduciary or partnership or person other than the sole beneficial owner of such payment to the extent that Taxes would not have been imposed on such payment had the beneficiary, partner or other beneficial owner directly held the Note;
(f) any Tax that is imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of the Notes for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficial owner or holder thereof would have been entitled to Additional Amounts shall had the Notes been presented for payment on any date during such 30 day period;
(g) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed or levied on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(h) any Tax that is imposed or levied on or with respect to a Note presented for payment on behalf of a holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Note to another paying agent in a member state of the European Union. In addition, Additional Amounts will not be payable with respect to any Taxes that are imposed in respect of a combination of the above items.
(c) The Company and each Guarantor will (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction required by applicable law and (ii) remit the full amount deducted or withheld to the relevant taxing authority as and when required in accordance with applicable law. The Issuer or any Guarantor .
(as applicabled) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 calendar days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on this Note with respect to the Notes is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer Company or a any Guarantor becomes aware that they will be obligated to pay Additional Amounts with respect to any such paymentpayment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it will be promptly thereafter), the Issuer Company will promptly furnish deliver to the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set forth such other information (other than the identities of holders and beneficial owners) necessary to enable the Trustee or Paying Agent, as the Paying Agent case may be, to pay such Additional Amounts to the holders and beneficial owners on the relevant payment date. The Issuer or a Guarantor (Trustee shall be entitled to rely solely on such Officer’s Certificate as applicable) conclusive proof that such payments are necessary. The Company will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of such Additional Amounts. Copies .
(e) Upon request, the Company or the relevant Guarantor will take reasonable efforts to furnish to the Trustee or a holder within a reasonable time certified copies of tax receipts evidencing the payment by the Company or such Guarantor, as the case may be, of any Taxes imposed or levied by a Relevant Taxing Jurisdiction.
(f) If, notwithstanding the reasonable efforts of the Company or such Guarantor to obtain such receipts, the same are not obtainable, then the Company or such Guarantor will provide such holder with other evidence reasonably satisfactory to the Trustee or holder of such documentation payment by the Company or such Guarantor.
(g) If the Company or any Guarantor conducts business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than a Relevant Taxing Jurisdiction and, as a result, is required by the law of such Additional Taxing Jurisdiction to withhold or deduct any amount on account of the Taxes imposed by such Additional Taxing Jurisdiction from payment under the Notes or the related Note Guarantee, as the case may be, which would not have been required to be so withheld or deducted but for such conduct of business in such Additional Taxing Jurisdiction, the provisions of Section 4.20(a) shall be made available apply as if the Additional Taxing Jurisdiction (or any political subdivision thereof or therein) were a Relevant Taxing Jurisdiction.
(h) The Company and each Guarantor will pay (i) any present or future stamp, issue, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the execution, issue, delivery or registration of the Notes, any Note Guarantee, this Indenture or the Security Documents or any other document or instrument referred to thereunder and any such taxes, charges, duties or similar levies imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes, such Note Guarantee, this Indenture or the Security Documents or any such other document or instrument following the occurrence of any Event of Default with respect to the holders upon requestNotes, and (ii) any stamp, court, documentary, excise or property taxes (or similar charges or levies), including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction with respect to the receipt of any payments with respect to the Notes or such Note Guarantee. Neither the Company nor any Guarantor will, however, pay such amounts that are imposed on or result from a sale or other transfer or disposition by a holder or beneficial owner of a Note.
(i) The foregoing obligations in provisions of this Paragraph 2 Section 4.20 will survive any termination, defeasance or discharge of the Indenture. References this Indenture or Security Documents and shall apply mutatis mutandis to any jurisdiction in this Paragraph 2 which any successor person to the Issuer Company or any Guarantor shall apply is organized, incorporated or otherwise resident for tax purposes and any political subdivision or taxing authority or agency thereof or therein.
(j) Whenever this Indenture refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to the Notes (including payments thereof made pursuant to any successor(s) theretoNote Guarantee), such reference includes the payment of Additional Amounts, if applicable.
Appears in 1 contract
Sources: Indenture (Atento S.A.)
Additional Amounts. (a) All payments made that the Issuers make under or with respect to this Note the Securities or that the Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guaranties shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes Securities or the relevant Guaranty is made on behalf of the Issuers or any Note Guarantee is madeGuarantor, or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax tax, or (3) any other jurisdiction in which the payor Issuers or any Guarantor is organized or otherwise considered to be a resident or engaged in business for tax purposesresident, or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax (each of clauses (1), (2) and (3), a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the IssuerIssuers or such Guarantor, relevant Guarantor or other applicable withholding agent as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer Issuers or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note GuaranteeSecurities, the Issuer Issuers or such the Guarantor, as the case may be, will be required shall, subject to the exceptions set forth in Section 2.19(b), pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder Holder of the Securities after such withholding or deduction (including any withholding or deduction on such attributable to Additional AmountsAmounts payable hereunder) will shall not be less than the amount such holder the Holder would have received if such Taxes had not been withheld or deducted; provided.
(b) Neither the Issuers nor any Guarantor will, however, that no be required to pay Additional Amounts will be payable with respect to payments made to any holder a Holder or beneficial owner of a Security:
(1) to the extent the Taxes giving rise to such Taxes are Additional Amounts would not have been imposed by reason of (i) such holder but for the Holder’s or beneficial owner being considered to be owner’s present or to have been connected former connection with a the Relevant Taxing Jurisdiction, Jurisdiction (other than by the acquisition, ownership, holding or disposition of this Note, a Security or by reason of the receipt of payments thereunder or under any Guaranty or the exercise or enforcement of rights under any Securities or this Note Indenture or under any Note Guarantee or Guaranty);
(2) to the receipt extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the failure of payments in respect of this Note or any Note Guarantee, or (ii) such holder the Holder or beneficial owner not completing any procedural formalities that it of Securities, following the Issuers’ written request addressed to the Holder, to the extent such Holder or beneficial owner is legally eligible entitled to complete and are necessary for the Issuerdo so, Guarantors to comply with any certification, identification, information or other applicable reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding agent to make or obtain authorization to make payments without such of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior to a certification that the receipt of any payment on Holder or beneficial owner is not resident in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another the Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to ;
(i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”3) with respect to the Issuer any estate, inheritance, gift, sales, transfer or personal property tax or any Guarantorsimilar Taxes (other than stamp, issue, registration, court, documentation, excise or other similar Taxes referred to in Section 2.19(f));
(iii4) any Tax if such Holder is a fiduciary or partnership or Person other than the sole beneficial owner of such payment and the Taxes giving rise to such Additional Amounts would not have been imposed on interest by such payment had such Holder been the United States beneficiary, partner or any political subdivision sole beneficial owner, as the case may be, of such Security (but only if there is no material cost or governmental authority thereof expense associated with transferring such Security to such beneficiary, partner or therein by reason of any sole beneficial owner being a bank extending credit pursuant to a loan agreement entered into in and no restriction on such transfer that is outside the ordinary course control of its trade such beneficiary, partner or business or sole beneficial owner);
(iv) any United States federal tax imposed pursuant to FATCA, (v5) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes that are payable otherwise than by deduction or withholding from payments on, or in respect of, the applicable Security or Guaranty;
(6) with respect to any Taxes imposed on amounts payable to such Holder or beneficial owner at the time such Holder becomes a party to this Indenture, except to the extent that such Holder’s transferor or assignor (if any) was entitled, at the time of assignment, to receive Additional Amounts with respect to such Taxes pursuant to Section 2.19(a); and
(7) with respect to any combination of the items listed above.
(c) The Issuers and the Guarantors will (1) make such withholding or deduction required by applicable law and (2) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) Issuers and the Guarantors will use commercially reasonable efforts provide to obtain the Trustee either a certified copies copy of tax receipts evidencing such payment or, if such tax receipts are not reasonably available to the Issuers or such Guarantor, such other documentation that provides reasonable evidence of such payment by the Issuer Issuers or such Guarantor Guarantor.
(as applicabled) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 calendar days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Issuers or the Guarantors shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Securities is due and payable, in which case it shall be promptly thereafter), the Issuers shall deliver to the Trustee an Officers’ Certificate stating that such Additional Amounts shall be payable and the amounts so payable and shall set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date. The Issuers and the Guarantors shall promptly publish a notice in accordance with Section 12.2 stating that such Additional Amounts will be payable and describing the obligation to pay such amounts.
(e) The Issuers and the Guarantors, jointly and severally, shall indemnify and hold harmless the Holders of Securities, and, upon written request of any Holder of Securities, reimburse such Holder for the amount of (1) any Taxes levied or imposed by a Relevant Taxing Jurisdiction and payable by such Holder in connection with payments made under or with respect to the Securities held by such Holder or any Guaranties; and (2) any Taxes levied or imposed with respect to any reimbursement under the foregoing clause (1) or this clause (2), so that the net amount received by such Holder after such reimbursement shall not be less than the net amount such Holder would have received if the Taxes giving rise to the reimbursement described in clauses (1) and/or (2) had not been imposed; provided, however, that the indemnification obligation provided for in this Section 2.19(e) shall not extend to Taxes imposed for which the eligible Holder of the Securities would not have been eligible to receive payment of Additional Amounts hereunder or to the extent such Holder received Additional Amounts with respect to such payments.
(f) The Issuers and the Guarantors shall pay and jointly and severally shall indemnify and hold harmless the Holders of Securities, and upon written request of any Holder of Securities, reimburse such Holder for the amount of any present or future stamp, issue, any present or future stamp, issue, registration, court, documentation, excise or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the execution, issue, registration or delivery of the Securities or any Guaranties or any other document or instrument referred to thereunder and any such taxes, charges or duties imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Securities or any Guaranty and/or any other such document or instrument. The provisions of this Section 2.19 shall survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor Person to the Issuers or any Guarantor and to any jurisdiction in which such successor is organized or is otherwise resident for tax purposes or any jurisdiction from or through which payment is made by such successor or its respective agents. Whenever this Indenture refers to, in any context, the payment of principal, premium, if any, interest or any other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before amount payable under or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any Security, such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing reference includes the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any terminationAmounts or indemnification payments as described hereunder, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) theretoif applicable.
Appears in 1 contract
Additional Amounts. All payments made under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, or interest or other amounts on this Note the Notes is to be made (unless an such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a any Guarantor will be obligated to pay Additional Amounts pursuant to Paragraph 2 of the Notes (the “Additional Amounts”) with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders Holders upon request. The Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or expense incurred without negligence or willful misconduct on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished to them pursuant to this Section 4.12. The Issuer will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copy to the Trustee. If the Issuer or the Guarantors conduct business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than a Relevant Taxing Jurisdiction and, as a result, are required by the law of such Additional Taxing Jurisdiction to deduct or withhold any amount on account -44- of taxes imposed by such Additional Taxing Jurisdiction from payments under the Notes which would not have been required to be so deducted or withheld but for such conduct of business in such Additional Taxing Jurisdiction, the Additional Amounts provision described above shall be considered to apply to such Holders as if references in such provision to “Taxes” included taxes imposed by way of deduction or withholding by any such Additional Taxing Jurisdiction (or any political subdivision thereof or taxing authority therein). The Issuer will pay any present stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in Luxembourg (or any political subdivision thereof or therein) from the execution, delivery and registration of Notes upon original issuance and initial resale of the Notes or any other document or instrument referred to therein, or in connection with the enforcement of the Notes or any Note Guarantee or any other document or instrument referred to therein. If at any time the Issuer changes its place of organization to outside of Luxembourg or there is a new issuer organized outside of Luxembourg, the Issuer or new issuer, as applicable, will pay any stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in the jurisdiction in which the Issuer or new issuer is organized (or any political subdivision thereof or therein) and are payable by the Holders of the Notes in respect of the Notes or any other document or instrument referred to therein under any law, rule or regulation in effect at the time of such change. The foregoing obligations in of this Paragraph 2 Section 4.12 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 Indenture and will apply mutatis mutandis to any successor Person to the Issuer or the Guarantors. Whenever in this Indenture or in the Notes there is mentioned, in any Guarantor shall apply context, the payment of principal, premium or interest, if any, or any other amount payable under or with respect to any successor(s) theretoNote, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 1 contract
Additional Amounts. All payments made under or with respect to this Note the Notes under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, ,” unless the Issuer, relevant Issuer or any Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyagency provided, however, that in determining what withholding is required by law for U.S. federal income and withholding tax purposes, the Issuer and any Guarantor shall be entitled to treat any payments on or in respect of the Notes as if the Notes were issued by a U.S. person as defined in section 7701(a)(30) of the Code. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a any Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note GuaranteeNotes, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the — “Additional Amounts”) ” — as may be necessary so that the net amount (including Additional Amounts) received by each holder Holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder Holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder Holder or beneficial owner to the extent such Taxes are imposed by reason of (i) such holder its being or beneficial owner being considered to be or to have having been connected with a the Relevant Taxing JurisdictionJurisdiction or any political subdivision or governmental authority thereof or therein having the power to tax, other otherwise than by the acquisition, ownership, holding holding, disposition or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee the Notes or the receipt of payments in respect of this Note or any Note Guaranteethereunder, or (ii) such holder Holder or beneficial owner not cooperating with the Issuer or the Guarantors in completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Issuer or the Guarantors or other applicable withholding agent to make pay or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this a Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments attachments); provided, however, that for purposes of this obligation to pay Additional Amounts, the Issuer and any Guarantor shall be entitled, for U.S. federal income and withholding tax purposes, to treat any payments on or in respect of the Notes as if the Notes were issued by a comparable form required by another Relevant Taxing Jurisdiction)U.S. person as defined in section 7701(a)(30) of the Code. Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein on interest by reason of any Holder or beneficial owner holding or owning, actually or constructively, 10% 10 percent or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, vote or (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein on interest by reason of any Holder or beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or will furnish to the Trustee, within 30 days after the date the payment of any Guarantor (as applicable) will use commercially reasonable efforts to obtain Taxes is due under applicable law, certified copies of tax receipts evidencing the such payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the TrusteeIssuer. Wherever in the Indenture, this Note Indenture or any Note Guarantee the Notes there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Notethe Notes, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guaranteeof the Notes, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principalThe Issuer will pay any present stamp, premiumcourt or documentary taxes, if anyor any other excise, property or similar taxes, charges or levies (including any penalties, interest or other amounts on this Note liabilities related thereto) which arise in the United States (or any political subdivision thereof or therein) from the execution, delivery and registration of Notes upon original issuance and initial resale of the Notes or any other document or instrument referred to therein. If at any time the Issuer changes its place of organization to outside of the United States or there is to be made (unless an obligation to pay Additional Amounts arises shortly before or after a new issuer organized outside of the 30th day prior to such dateUnited States, in which case it shall be promptly thereafter), if the Issuer or a Guarantor new issuer, as applicable, will be obligated pay any stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in the jurisdiction in which the Issuer or new issuer is organized (or any political subdivision thereof or therein) and are payable by the Holders of the Notes in respect of the Notes or any other document or instrument referred to pay Additional Amounts with respect to therein under any law, rule or regulation in effect at the time of such change, or in connection with, the enforcement of the Notes or any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee document or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon requestinstrument. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 section (“Additional Amounts”) to the Issuer or any Guarantor shall apply to any successor(s) thereto.
Appears in 1 contract
Sources: Supplemental Indenture (Fresenius Medical Care AG & Co. KGaA)
Additional Amounts. (a) All payments made that the Issuer makes under or with respect to this Note the Notes or that any Subsidiary Guarantor makes under the Indenture or pursuant with respect to any Note its Guarantee must will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of any jurisdiction in which the (1) the United States, Germany, LuxembourgIssuer, the United Kingdom Subsidiary Guarantor or any political subdivision Surviving Entity is incorporated, organized, engaged in business (where such Tax is imposed by reason of the Issuer, Subsidiary Guarantor, or governmental authority thereof Surviving Entity being engaged in business) or therein having the power to tax, (2) any jurisdiction otherwise resident for tax purposes or from or through which any of the foregoing makes any payment on the Notes or by or within any Note Guarantee is made, department or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the IssuerIssuer or such Subsidiary Guarantor, relevant Guarantor or other applicable withholding agent as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a any Subsidiary Guarantor is so required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note GuaranteeNotes, the Issuer or such Subsidiary Guarantor, as the case may be, will be required to pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount received by each Holder of the Notes (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will be not be less than the amount such holder the Holder would have received if such Taxes had not been required to be withheld or deducted; provided.
(b) Neither the Issuer nor any Subsidiary Guarantor will, however, that no pay Additional Amounts will be payable with in respect to payments made to or on account of:
(i) any holder to the extent such Taxes that are imposed or levied by a Relevant Taxing Jurisdiction by reason of a present or former connection of a Holder (ior a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if the Holder is an estate, a trust, a partnership or a corporation) or a beneficial owner with such holder Relevant Taxing Jurisdiction (other than the mere receipt or holding of Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under any Notes or the Indenture);
(ii) any Taxes that are imposed or levied by reason of the failure of the Holder or beneficial owner being considered of Notes, following the Issuer’s written request addressed to be the Holder (and made at a time which would enable the Holder or beneficial owner acting reasonably to have been connected comply with that request), to comply with any certification, identification, information or other reporting requirements which the Holder or such beneficial owner is legally required to satisfy, whether imposed by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, other than as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes Relevant Taxing Jurisdiction (including, without limitation, providing prior to a certification that the receipt of any payment on Holder or beneficial owner is not resident in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another the Relevant Taxing Jurisdiction). Further;
(iii) any estate, no Additional Amounts shall be inheritance, gift, sales, transfer, personal property or similar Taxes;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes;
(iv) any Tax that is imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of such Notes for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficial owner or Holder thereof would have been entitled to Additional Amounts had the Notes been presented for payment on any date during such 30 day period;
(vi) any Tax imposed on interest or with respect to any payment by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Subsidiary Guarantor to the Holder if such Holder is a fiduciary or partnership or person other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary, member of such partnership or the beneficial owner of such payment would not have been entitled to votethe Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual holder of such Note;
(iivii) any Tax that is imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the Issuer or any Guarantor, relevant Notes to another paying agent in a member state of the European Union;
(iiiviii) any Tax withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant payment to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who an individual and is required to deduct be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the withholding tax from conclusions of the ECOFIN Council meeting of November 26–27, 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such interest payments, provided that this Note is held in custody with such German custodian. Directive; or
(ix) any combination of the above.
(c) The Issuer or and any Subsidiary Guarantor will (as applicablei) required to withhold any Taxes will make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant taxing authority as and when required in the Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or any Guarantor .
(as applicabled) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 calendar days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on this Note with respect to the Notes is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer or a any Subsidiary Guarantor will be obligated to pay Additional Amounts with respect to any such paymentpayment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it will be promptly thereafter), the Issuer will promptly furnish deliver to the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer will promptly publish a notice in accordance with the provisions set forth in Section 13.02 of the Indenture stating that such Additional Amounts will be payable and describing the obligation to pay such amounts.
(e) Upon request, the Issuer or a Guarantor (as applicable) the Subsidiary Guarantors will pay furnish to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation Holder copies of tax receipts evidencing the payment of any Taxes by the Issuer or the applicable Subsidiary Guarantor in such Additional Amounts. Copies of form as provided in the normal course by the taxing authority imposing such documentation shall be made Taxes and as is reasonably available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or the applicable Subsidiary Guarantor. If notwithstanding the efforts of the Issuer or the Subsidiary Guarantors to obtain such receipts, the same are not obtainable, the Issuer or the applicable Subsidiary Guarantor will provide the Trustee or such Holder other evidence satisfactory to the Trustee or the Holder of such payments by the Issuer or the applicable Subsidiary Guarantor.
(f) In addition, the Issuer and the Subsidiary Guarantors shall pay any present or future stamp, issue, registration, documentation, excise or property taxes or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the execution, issue, delivery or registration of the Notes or any other document or instrument referred to thereunder (other than in respect of the execution, issue, delivery or registration of Notes pursuant to Section 2.06, Section 2.07 or Section 2.10(a)(iv) of the Indenture) and any such taxes, charges or duties imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes and/or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes, and the Issuer and each Subsidiary Guarantor shall indemnify the Holders for any such taxes paid by such Holders.
(g) The obligations under this paragraph 3 shall apply mutatis mutandis to any successor(s) theretojurisdiction in which any Surviving Entity or successor person to the Issuer is incorporated, organized, engaged in business or otherwise resident for tax purposes, or any political subdivision or taxing authority thereof or therein. Whenever the Indenture or this Note refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note, such reference includes the payment of Additional Amounts, if applicable.
Appears in 1 contract
Additional Amounts. (a) All payments made by or on behalf of the Issuers under or with respect to this Note under the Indenture or pursuant to Notes (including any Note Guarantee must payments by a Subsidiary Guarantor) shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom Government of Canada or any political subdivision province or governmental authority territory thereof or by any authority or agency therein or thereof having the power to taxtax or any other jurisdiction in which an Issuer or any Subsidiary Guarantor is organized, (2) or is otherwise carrying on business in, or is otherwise resident for tax purposes, or any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having excluding the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax United States (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, ) unless the Issuer, relevant an Issuer or any Subsidiary Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. thereof.
(b) If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the an Issuer or a any Subsidiary Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note GuaranteeNotes, the such Issuer or such Guarantor, as the case may be, will Subsidiary Guarantor shall be required to pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so that the net amount received by a holder or beneficial owner of Notes (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will shall not be less than the amount such holder would have received if such Taxes including Taxes or Additional Amounts had not been withheld or deducted; provided, however, that no the foregoing obligation to pay Additional Amounts will be payable to a Holder (such Holder, an “Excluded Holder”) does not apply with respect to payments to: (1) any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant holder or beneficial owner (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over the relevant holder or beneficial owner, if the relevant holder or beneficial owner is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (other than a connection from the mere acquisition, ownership or holding of such notes or a beneficial interest therein or the enforcement of rights thereunder or the receipt of payment in respect thereof); (2) Canadian withholding taxes imposed on any payment made to any holder or beneficial owner of the Notes with which an Issuer does not deal at arm’s length (within the meaning of the Income Tax Act (Canada)) at the time of making such payments; (3) any estate, inheritance, gift, sales, excise, transfer, use, personal property tax or similar tax, assessment or governmental charge; (4) any Taxes payable otherwise than by deduction or withholding from payments on the Notes; (5) any Taxes imposed because the relevant holder or beneficial owner of the Note fails to complete, execute and deliver any form or document to the extent such Taxes are imposed by reason of (i) applicable to such holder or beneficial owner being considered that may be required by law or by reason of administration of such law to enable an Issuer or any Subsidiary Guarantor to make payments on the Notes without deduction or withholding for Taxes, or with deduction or withholding of a lesser amount; (6) any Taxes that would not have been imposed if the holder or beneficiary of the payment had presented the Note for payment within 30 days after the date on which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period); (7) any Taxes that were imposed with respect to any payment on a Note to any holder who is a fiduciary partnership, limited liability company or any person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or limited liability company or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual holder of such Note; or (8) any withholdings or deductions imposed on a payment to an individual that are required to be or made pursuant to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note European Union Directive 2003/48/EC (as amended from time to time) or any Note Guaranteelaw implementing or complying with, or introduced in order to conform to, such Directive, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i9) any Tax Taxes that would not have been imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more but for a combination of the total combined voting power of all classes of stock of the foregoing.
(c) Such Issuer or any Subsidiary Guarantor entitled to vote, (ii) any Tax imposed on interest by shall pay the United States amount withheld or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant governmental authority as and when required on a timely basis in accordance with applicable law. The As soon as practicable, the Issuers shall provide the Trustee with official receipts or other documentation evidencing the payment of the Taxes with respect to which Additional Amounts are paid.
(d) If either Issuer or any Subsidiary Guarantor (as applicable) will use commercially reasonable efforts is or shall become obligated to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes pay Additional Amounts under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note any payment made on any of the Notes or any a Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At at least 30 days prior to each the date on which of such payment of principal, premium, if any, interest or other amounts on this Note is to be made (unless an such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the such Issuer or a Guarantor will be obligated Subsidiary Guarantor, as the case may be, shall deliver to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating the fact that such Additional Amounts will shall be payable and the amounts amount so payable, payable and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such remit Additional Amounts to the holders on the relevant payment date. The Issuer or a Guarantor .
(as applicablee) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing Whenever in this Indenture there is mentioned in any context: (1) the payment of principal; (2) redemption prices or purchase prices in connection with a redemption or repurchase of Notes; (3) interest; or (4) any other amount payable on or with respect to any of the Notes or any Note Guarantee, such Additional Amounts. Copies of such documentation reference shall be made available deemed to include payment of Additional Amounts as described under this Section 2.13 to the holders upon request. extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The foregoing Issuers and the Subsidiary Guarantors shall indemnify a holder or beneficial owner of notes (other than an Excluded Holder) for the full amount of any Taxes (including for greater certainty, Taxes payable pursuant to Section 803 of the regulation to the Income Tax Act (Canada)) paid by such holder to a governmental authority of a Relevant Taxing Jurisdiction, on or with respect to any payment by either Issuer or any Subsidiary Guarantor on account of failure to satisfy any obligation of either Issuer or any Subsidiary Guarantor to withhold or deduct Taxes for which such Issuer or Subsidiary Guarantor would have been obliged to pay Additional Amounts hereunder.
(g) The Issuers shall pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in any Relevant Taxing Jurisdiction from the execution, delivery, enforcement or registration of the Notes, this Indenture or any other document or instrument in relation thereof, or the receipt of any payments with respect to the Notes (including any payments by a Subsidiary Guarantor).
(h) The obligations described in this Paragraph 2 will Section 2.13 shall survive any termination, defeasance or discharge of the this Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) thereto.
Appears in 1 contract
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any Guarantor (each a “Payor”) under or with respect to this Note under the Indenture Debentures or pursuant to any Note Debenture Guarantee must will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) Taxes imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction in which such Payor is organized, resident or carrying on business for tax purposes or from or through which such Payor (or its agents) makes any payment on the Notes Debentures or any Note Debenture Guarantee is made, or any department or political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposeseach, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent such Payor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencythereof. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor Payor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes Debentures or any Note Debenture Guarantee, such Payor, subject to the Issuer or such Guarantor, as the case may beexceptions set forth in Section 2.6(b), will be required to pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so such that the net amount (including Additional Amounts) received in respect of such payment by each holder Holder or Beneficial Holder after such withholding or deduction (including any withholding or deduction attributable to Additional Amounts payable hereunder but excluding Taxes on such Additional Amountsnet income) will not be less than the amount such holder the Holder or Beneficial Holder, as the case may be, would have received if such Taxes had not been required to be so withheld or deducted; provided.
(b) Notwithstanding Section 2.6(a), a Payor will not, however, that no pay Additional Amounts will be payable to a Holder or Beneficial Holder with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax following Taxes imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note a Holder or Beneficial Holder or required to be withheld or deducted from a payment to a Holder or Beneficial Holder:
(i) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case (i) imposed as a result of such Holder or Beneficial Holder being organized under the laws of, having a business office located in, or being a resident of the jurisdiction imposing such Tax (or any Note Guaranteepolitical subdivision thereof) or (ii) that are Other Connection Taxes;
(ii) in the case of a Holder or Beneficial Holder, withholding Taxes imposed on amounts payable to or for the account of such reference shall be Holder or Beneficial Holder with respect to an applicable interest in an Indenture Obligation pursuant to a law in effect on the date on which such Holder or Beneficial Holder acquires such interest in the Indenture Obligation;
(iii) Taxes attributable to such Holder or Beneficial Holder’s failure to comply with a request from the Trustee to provide a tax exemption certificate;
(iv) any withholding Taxes imposed under FATCA;
(v) any Canadian withholding Taxes imposed under the Tax Act on any amount paid or credited, or deemed to include payment as paid or credited, by or on account of Additional Amounts as described any obligation of the Issuer under this heading Indenture (i) to a Holder or Beneficial Holder or recipient with which the extent thatPayor does not deal at arm’s length (for the purposes of the Tax Act) at the time of making such payment or (ii) in respect of a debt or other obligation to pay an amount to a Holder or Beneficial Holder or recipient with whom the Payor is not dealing at arm’s length (for the purposes of the Tax Act) at the time of such payment (other than where, in the case of the foregoing clauses (i) or (ii), the non-arm’s length relationship arises as a result of such contextHolder or Beneficial Holder or recipient having become a party to, Additional Amounts arereceived or perfected a security interest under or received or enforced any rights under this Indenture or any other Debenture Document);
(vi) any Canadian withholding Taxes imposed under the Tax Act on any amount paid or credited, were or would be payable deemed as paid or credited, by any Holder or Beneficial Holder or recipient by reason of such Holder or Beneficial Holder or recipient (i) being a “specified non-resident shareholder” (as defined in respect thereof. subsection 18(5) of the Tax Act) of the Issuer or (ii) not dealing at arm’s length (for the purposes of the Tax Act) with a “specified non-resident shareholder” (as defined in subsection 18(5) of the Tax Act) of the Issuer; or
(vii) any combination of the foregoing items (i) through (vi); (collectively, the “Excluded Taxes”).
(c) At least 30 calendar days prior to each date on which any payment of principal, premiumunder or with respect to the Debentures or any Debenture Guarantee is due and payable, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor Payor will be obligated to pay Additional Amounts with respect to any such paymentpayment (unless such obligation to pay Additional Amounts arises after the 35th day prior to the date on which such payment is due and payable, in which case it will be promptly thereafter), the Issuer Payor will promptly furnish deliver to the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. .
(d) The Issuer Payors, jointly and severally, will indemnify and hold harmless the Holders and Beneficial Holders and, upon written request of any Holder or Beneficial Holder, reimburse such Holder or Beneficial Holder for the amount of (i) any Taxes levied or imposed by a Guarantor Relevant Taxing Jurisdiction and payable by such Holder or Beneficial Holder in connection with payments made under or with respect to the Debentures held by such Holder or Beneficial Holder and (ii) any Taxes levied or imposed with respect to any reimbursement under the foregoing clause (i) or this clause (ii), so that the net amount received by such Holder or Beneficial Holder after such reimbursement will not be less than the net amount such Holder or Beneficial Holder would have received if the Taxes giving rise to the reimbursement described in clauses (i) and/or (ii) had not been imposed; provided, however, that the indemnification or reimbursement obligations provided for in this clause (d) shall not extend to Taxes for which the applicable Holder or Beneficial Holder would not have been eligible to receive payment of Additional Amounts hereunder by virtue of clauses (i) through (vii) of Section 2.6(b) if the Payor had been required to withhold from such payments or to the extent such Holder or Beneficial Holder received Additional Amounts with respect to such payments.
(e) In addition, the Payor will pay any stamp, issue, registration, court, documentation, excise or other similar taxes, charges and duties, including any interest, penalties and any similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction at any time in respect of the execution, issuance, registration or delivery of the Debentures, any Debenture Guarantee or any other document or instrument referred to thereunder and any such taxes, charges or duties imposed by any Relevant Taxing Jurisdiction on any payments made pursuant to the Debentures or any Debenture Guarantee or as applicablea result of, or in connection with, the enforcement of the Debentures, any Debenture Guarantee and/or any other such document or instrument.
(f) will If a Holder or Beneficial Holder determines, acting reasonably and in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.6 (including by the payment of Additional Amounts), or that, because of the indemnification, it has benefited from a reduction in Excluded Taxes otherwise payable by it, it shall pay to the Trustee indemnifying party an amount equal to the refund or reduction (but only to the Paying Agent such extent of the indemnification and payment of Additional Amounts andAmounts), if paid to a Paying Agent net of all out-of-pocket expenses of the Holder or Beneficial Holder, as the case may be, and without interest (other than any net after Tax interest paid by the Trusteerelevant Governmental Entity with respect to any such refund). The indemnifying party, upon the request of the indemnified party, shall promptly provide repay to the Trustee with documentation evidencing indemnified party the amount paid over pursuant to this Section 2.6(f) (plus any penalties, interest or other charges imposed by the relevant Governmental Entity) if the indemnified party is required to repay the refund or reduction to the Governmental Entity. Notwithstanding anything to the contrary in this Section 2.6(f), in no event shall the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 2.6(f) the payment of which would place the indemnified party in a less favourable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such Additional Amountsrefund or reduction had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. Copies This Section shall not be construed to require any indemnified party to make available its tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or to any other Person, to arrange its affairs in any particular manner or to claim any available refund or reduction.
(g) Any Holder or Beneficial Holder that is entitled to an exemption from or reduction of such withholding tax under the Relevant Taxing Jurisdiction, or any treaty to which that jurisdiction is a party, with respect to payments under the Debentures or any Debenture Guarantee shall, at the request of the Payor, deliver to the Payor (with a copy to the Trustee), at the time or times prescribed by the Relevant Taxing Jurisdiction or reasonably requested by the Payor, all properly completed and executed documentation shall prescribed by the Relevant Taxing Jurisdiction that will permit the payments to be made available without withholding or at a reduced rate of withholding. In addition any Holder or Beneficial Holder, if requested by the Payor, shall deliver other documentation prescribed by the Relevant Taxing Jurisdiction or reasonably requested by the Payor that will enable the Payor to determine whether or not that Holder or Beneficial Holder is subject to withholding or information reporting requirements and (ii) any Holder or Beneficial Holder shall notify the holders upon request. Payor in writing within five (5) Business Days of ceasing to be, or to be deemed to be, resident in a jurisdiction.
(h) The foregoing obligations in described under this Paragraph 2 Section 2.6 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor Person to any Payor and to any jurisdiction in which such successor is organized or is otherwise resident or doing business for tax purposes or any jurisdiction from or through which payment is made by such successor or its respective agents. Whenever this Indenture refers to, in any context, the Indenture. References payment of the Standby Fee, principal, Premium and interest or any other amount payable under or with respect to any Debenture, such reference shall include the payment of Additional Amounts or indemnification payments as described in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) theretoSection 2.6, if applicable.
Appears in 1 contract
Sources: Trust Indenture (High Tide Inc.)
Additional Amounts. All payments (a) Payments made by or on behalf of the Company under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must Notes will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) Taxes imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Company or any Subsidiary Guarantor or other applicable withholding agent is required by law to withhold or deduct Taxes by law from any payment made under or with respect to the Notes or by the interpretation or administration thereof by thereof. If, after the relevant government authority Issue Date, the Company or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a any Subsidiary Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note GuaranteeNotes, the Issuer Company or such GuarantorSubsidiary Guarantor will pay to each Holder of Notes that are outstanding on the date of the required payment, as the case may be, will be required to pay such amount additional amounts (such amount the “Additional Amounts”"ADDITIONAL AMOUNTS") as may be necessary so that the net amount received by such Holder (including the Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder Holder would have received if such Taxes had not been withheld or deducted; provided, however, provided that no Additional Amounts will be payable with respect to payments a payment made to any holder a Holder (an "EXCLUDED HOLDER"):
(i) with which the Company or such Subsidiary Guarantor does not deal at arm's length (within the meaning of the Income Tax Act (Canada)) at the time of making such payment, or
(ii) which is subject to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner its being considered to be or to have been connected with a Relevant the relevant Taxing Jurisdiction, other Jurisdiction otherwise than by the mere acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note Notes or under any Note Guarantee the Subsidiary Guaranty or the receipt of payments in respect of this Note or any Note Guarantee, or thereunder.
(iib) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete The Company and are necessary for the Issuer, Subsidiary Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to will also:
(i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and deduction, and
(ii) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. .
(c) The Issuer Company and the Subsidiary Guarantors will furnish to the Trustee, or cause to be furnished to the Trustee, within 30 days after the date the payment of any Guarantor (as applicable) will use commercially reasonable efforts Taxes is due pursuant to obtain applicable law, certified copies of tax receipts evidencing the that such payment has been made by the Issuer Company or any such Subsidiary Guarantor (as applicable) or other evidence of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies payment satisfactory to the Trustee. Wherever in The Trustee shall make such evidence available upon the Indenturewritten request of any Holder of Notes that are outstanding on the date of any such withholding or deduction.
(d) The Company and the Subsidiary Guarantors will indemnify and hold harmless each Holder of Notes that are outstanding on the date of the required payment (other than an Excluded Holder) and upon written request reimburse each such Holder for the amount of:
(i) any Taxes so levied or imposed by or on behalf of a Taxing Jurisdiction and paid by such holder as a result of payments made under or with respect to the Notes and any liability (including penalties, interest and expense) arising therefrom or with respect thereto, and
(ii) any Taxes (other than Taxes on such ▇▇▇▇▇▇'s profits or net income) imposed with respect to any reimbursement under clause (d)(i) of this Note Section 4.19 so that the net amount received by such ▇▇▇▇▇▇ after such reimbursement will not be less than the net amount such holder would have received if such reimbursement had not been imposed.
(e) At least 30 days prior to each date on which any payment under or with respect to the Notes is due and payable, if the Company or any Note Guarantee such Subsidiary Guarantor becomes obligated to pay Additional Amounts with respect to such payment, the Company or such Subsidiary Guarantor will deliver to the Trustee an Officers' Certificate stating the fact that such Additional Amounts will be payable, and the amounts so payable and will set forth such other information as is necessary to enable the Trustee to pay such Additional Amounts to the Holders on the payment date. Whenever in this Indenture there are is mentioned, in any context, :
(1i) the payment of principalprincipal (and premium, if any),
(2ii) purchase prices in connection with a purchase repurchase of Notes under the Indenture or this NoteNotes,
(iii) interest, including Special Interest, if any, or
(3) interest or (4iv) any other amount payable on or with respect to this Note or any Note Guaranteeof the Notes, such reference mention shall be deemed to include mention of the payment of Additional Amounts as described under provided for in this heading Section 4.19 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) thereto.
Appears in 1 contract
Sources: Indenture (Novelis Inc.)
Additional Amounts. All payments made by the Company or any Guarantor under or with respect to this Note under the Indenture Notes or pursuant to any Note Guarantee must will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Company or a Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Company or any Guarantor (or any other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor agent) is so required to withhold or deduct any amount for for, or on account of, any Taxes imposed or levied by or on behalf of Taxes (a) the government of Canada or any province or territory thereof, (b) any jurisdiction in which the Company or any Guarantor is incorporated, organized, resident or doing business for tax purposes or (c) any jurisdiction from or through which any payment is made by or on behalf of the Company or any Guarantor (including the jurisdiction of any Paying Agent) or, in each case, a political subdivision thereof or therein (each of (a), (b) and (c) a “Relevant Taxing Jurisdiction”) in respect of any payment made under or with respect to the Notes or any Note Guarantee, (a) the Issuer Company, the Guarantor or the applicable withholding agent will make such Guarantorwithholding or deduction, as (b) the case may beCompany, the Guarantor or the applicable withholding agent will be remit the full amount deducted or withheld to the relevant government authority in accordance with and in the time required to under applicable law and (c) the Company or the applicable Guarantor will pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each holder beneficial owner of Notes after such withholding or deduction (including any deduction or withholding or deduction on such in respect of Additional Amounts) will not be less than equal the amount such holder beneficial owner would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to to:
(1) any holder Taxes, to the extent such Taxes are would not have been imposed by reason but for the existence of any present or former connection between the Holder or beneficial owner of Notes and the Relevant Taxing Jurisdiction (i) including such holder Holder or beneficial owner being considered to be a citizen or to have been connected with resident or national of, or carrying on a business or maintaining a permanent establishment in, the Relevant Taxing Jurisdiction, ) other than by a connection arising solely from the acquisition, ownership, holding or disposition of this such Note, the enforcement of rights under this such Note or under any Note Guarantee Guarantee, or the receipt of payments in respect of this such Note or any Guarantee;
(2) any Taxes, to the extent such Taxes are imposed or withheld by reason of the Holder’s or beneficial owner’s failure to satisfy any certification, identification or other reporting requirements, whether imposed by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, which are necessary to enable the Company or a Guarantor to make payments on the Notes without deduction or withholding for Taxes; provided, however, that the Company has delivered a written request to such Holder or beneficial owner to comply with such requirements at least 30 days prior to the date by which such compliance is required and such Holder or beneficial owner can legally comply with such requirements;
(3) any Taxes, to the extent such Taxes would not have been imposed if the presentation of a Note Guarantee(where presentation is required) for payment had occurred within 30 days after the date such payment was due and payable or was duly provided for, whichever is later, but only to the extent such Additional Amounts would not have been required had the Note been presented on the last day of the applicable 30 day period;
(4) any Taxes that are imposed on or with respect to any payment made to any Holder who is a fiduciary or partnership or other person that is not the sole beneficial owner of such payment, to the extent that a beneficiary or settlor (for tax purposes) with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of the applicable Note;
(5) any Canadian Taxes, to the extent such Taxes would not have been imposed but for the fact that the Holder or beneficial owner (i) does not deal at arm’s length (within the meaning of the ITA) with the Company or a Guarantor or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for a “specified shareholder” (as defined in subsection 18(5) of the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to ITA) of the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments Company or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to Guarantor or does not deal at arm’s length (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4the ITA) with any such specified shareholder;
(6) any Taxes imposed as a result of the application of subsection 212(3.2) of the Internal Revenue Code of 1986ITA;
(7) any estate, as amended inheritance, gift, sales, transfer or similar Tax;
(the “Code”) 8) any Taxes that are payable other than by deduction or withholding from payments under or with respect to the Issuer Notes or any Guarantor, Guarantee;
(iii9) any Tax Taxes imposed on interest by pursuant to Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents the foregoing or any Tax withheld agreements entered into pursuant to Section 1471(b)(1) of the Code;
(10) any combination of the items (1) through (9) above. Each of the Company and the Guarantors will, jointly and severally, indemnify and hold harmless each Holder and beneficial owner of Notes for (x) any Taxes levied by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing (other than Taxes excluded by clauses (1) through (10) above) and paid by each such Holder or beneficial owner as a result of payments made under or with respect to such Notes or Guarantee, and (y) any Taxes (other than Taxes excluded by clauses (1) through (10) above) so levied or imposed with respect to any indemnification payments under the foregoing clause (x) or this clause (y) such that the net amount received by such Holder or beneficial owner after such indemnification payments will not be less than the net amount the Holder or beneficial owner would have received if the Taxes described in clauses (x) and will provide such certified copies to the Trustee(y) above had not been imposed. Wherever Whenever there is mentioned in the this Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, premium (2) purchase prices in connection with a purchase of Notes under the Indenture or this Noteif any), (3) Redemption Price, interest or (4) of any other amount payable on under or with respect to this Note the Notes or any Note Guarantee, such reference mention shall be deemed to include mention of the payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof The Company or the relevant Guarantor will provide to the Trustee (or to a Holder or beneficial owner upon written request), within 60 days after the date the payment of any Taxes giving rise to Additional Amounts is due, receipts or, if receipts are not available, other documentation reasonably satisfactory to the Trustee evidencing payment by the Company or such Guarantor of such Taxes. The Company and the Guarantors will pay any present or future stamp, issue, registration, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance or registration or enforcement of the Notes, this Indenture, any Guarantee or any other document or instrument referred to therein, or the receipt of any payments under or with respect to the Notes or any Guarantee (“Documentary Taxes”). The obligation to pay Additional Amounts and Documentary Taxes under this Section 1027 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor to the Company or any Guarantor and to any jurisdiction in which any successor Person to the Company or any Guarantor is incorporated, organized, resident or doing business for tax purposes or any jurisdiction from or through which such person (or its paying agent) makes any payment under or with respect to the Notes or any Guarantee and, in each case, any political subdivision thereof or therein. At least 30 days prior to each date on which any payment of principalunder, premiumor with respect to, if any, interest the Notes or other amounts on this Note any Guarantee is to be made due and payable (unless an such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such datethe date on which payment under or with respect to the Notes is due and payable, in which case it shall will be promptly thereafter), if the Issuer Company or a any Guarantor will be becomes obligated to pay Additional Amounts with respect to any such payment, the Issuer Company will promptly furnish deliver to the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set setting forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders beneficial owners of such Notes on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) thereto.
Appears in 1 contract
Additional Amounts. (a) All payments made that the Issuer makes under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must Notes shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction in which the Issuer is organized or is a resident for tax purposes or from or through which the Issuer makes any payment on the Notes or by or within any Note Guarantee is made, department or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposeseach, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent Issuer is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note GuaranteeNotes, the Issuer or such Guarantor, as the case may be, will be required to shall pay such amount additional amounts in cash (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder Holder after such withholding or deduction (including any withholding or deduction on such attributable to Additional AmountsAmounts payable hereunder) will not be less than the amount such holder the Holder would have received if such Taxes had not been withheld or deducted; provided.
(b) Notwithstanding the foregoing, however, that the Issuer shall pay no Additional Amounts will be payable with respect to payments made to a Holder or beneficial owner of any holder Note:
(i) to the extent the Taxes giving rise to such Taxes are Additional Amounts would not have been imposed but for the Holder’s or beneficial owner’s present or former connection with the Relevant Taxing Jurisdiction (other than a connection arising by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under this Note or under any Note Guarantee Notes or the receipt of payments in respect of this Note or any Note Guarantee, or Indenture);
(ii) to the extent the Taxes giving rise to such holder Additional Amounts would not have been imposed but for the failure of the Holder or beneficial owner not completing any procedural formalities that it of Notes, following the Issuer’s written request addressed to the Holder, to the extent such Holder or beneficial owner is legally eligible entitled to complete and are necessary for the Issuerdo so, Guarantors to comply with any certification, identification, information or other applicable reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding agent to make or obtain authorization to make payments without such of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior to a certification that the receipt of any payment on Holder or beneficial owner is not resident in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another the Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to ;
(i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”iii) with respect to the Issuer any estate, inheritance, gift, sales, transfer or personal property tax or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or similar Taxes;
(iv) any United States federal tax if such Holder is a fiduciary or partnership or Person other than the sole beneficial owner of such payment and the Taxes giving rise to such Additional Amounts would not have been imposed pursuant on such payment had such Holder been the beneficiary, partner or sole beneficial owner, as the case may be, of such Note (but only if there is no material cost or expense associated with transferring such Note to FATCAsuch beneficiary, partner or sole beneficial owner and no restriction on such transfer that is outside the control of such beneficiary, partner or sole beneficial owner);
(v) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the presentation by the Holder of any Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(vi) with respect to German tax residents any Tax withheld by withholding or deduction that is imposed on a German custodian, who payment to an individual and that is required to deduct be made pursuant to the withholding tax from European Council Directive on the taxation of savings income which was adopted by the ECOFIN Council on June 3, 2003 or any law implementing or complying with, or introduced in order to conform to, such interest paymentsdirective (the “EU Savings Tax Directive”) or is required to be made pursuant to the Agreement between the European Community and the Swiss Confederation dated of October 26, provided that this Note is held 2004 providing for measures equivalent to those laid down in custody the EU Savings Tax Directive (the “EU-Swiss Savings Tax Agreement”) or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, such agreement; and
(vii) with such German custodianrespect to any combination of the items listed above. The Issuer or any Guarantor shall (as applicableA) required to withhold any Taxes will make such withholding or deduction of Taxes required by applicable law and (B) remit the full amount of Taxes so deducted or withheld to the relevant authority as and when required Taxing Authority in accordance with all applicable lawlaws. The Issuer or any Guarantor (as applicable) will use commercially shall make reasonable best efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will Taxes. The Issuer shall provide such certified copies to the Trustee. Wherever in , within a reasonable time after the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) date the payment of principalany Taxes so deducted or withheld are due pursuant to applicable law, (2) purchase prices in connection with either a purchase certified copy of Notes under tax receipts evidencing such payment or, if such tax receipts are not reasonably available to the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note GuaranteeIssuer, such reference shall be deemed to include other documentation that provides reasonable evidence of such payment of Additional Amounts as described under this heading to by the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. Issuer.
(c) At least 30 calendar days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on this Note with respect to the Notes is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer or a Guarantor will shall be obligated to pay Additional Amounts with respect to any such paymentpayment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it will be promptly thereafter), the Issuer will promptly furnish shall deliver to the Trustee and the Paying Agent, if other than the Trustee, with Agent an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set setting forth such other information as is necessary to enable the such Trustee or the and Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer or shall promptly publish a Guarantor (as applicable) will pay to the Trustee or the Paying Agent notice in accordance with Section 13.02 stating that such Additional Amounts andwill be payable and describing the obligation to pay such amounts. In addition, if paid to a Paying Agent other than the TrusteeIssuer, shall promptly provide pay any present or future stamp, issue, registration, court documentation, excise or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the Trustee with documentation evidencing execution, issue, registration or delivery of the payment Notes or any other document or instrument referred to thereunder and any such taxes, charges or duties imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes and/or any other such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. document or instrument.
(d) The foregoing obligations in this Paragraph 2 will provisions shall survive any termination, defeasance or discharge of the indenture and shall apply mutatis mutandis to any jurisdiction in which any Surviving Entity (as defined in Section 5.01(b)(i)) is organized or resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein or any jurisdiction from or through which payment is made by such Surviving Entity.
(e) Whenever the Indenture or the Notes refer to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note, such reference shall be deemed to include mention of the payment of Additional Amounts or indemnification payments as described hereunder, to the extent that in such context Additional Amounts or indemnification payments are, were or would be payable in respect thereof pursuant to Section 4.12 of the Indenture. References The Issuer shall indemnify and hold harmless the Holders and, upon written request of any Holder, reimburse such Holder for the amount of (i) any Taxes levied or imposed by a Relevant Taxing Jurisdiction and payable by such Holder in connection with payments made under or with respect to the Notes held by such Holder; and (ii) any Taxes levied or imposed with respect to any reimbursement under the foregoing clause (i) or this clause (ii), so that the net amount received by such Holder after such reimbursement shall not be less than the net amount such Holder would have received if the Taxes giving rise to the reimbursement described in clauses (i) and/or (ii) had not been imposed, provided, however, that the indemnification obligation provided for in this Paragraph 2 paragraph (g) shall not extend to Taxes imposed for which the eligible Holder of the Notes would not have been eligible to receive payment of Additional Amounts hereunder or to the Issuer or any Guarantor shall apply extent such Holder received Additional Amounts with respect to any successor(s) theretosuch payments.
Appears in 1 contract
Sources: Indenture (Digicel Group LTD)
Additional Amounts. All payments made under The payment of Capital Payments on the Class B Preferred Securities, and any amount payable upon redemption thereof or with respect to this Note under the Indenture or pursuant to any Note Guarantee must in liquidation, shall be made free and clear of and without any deduction or withholding or deduction for or on account of any present or future taxtaxes, dutyduties or governmental charges of any nature whatsoever imposed, levy, impost, assessment levied or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied collected by or on behalf of the United States or Germany (1or any jurisdiction from which payments are made) the United Statesor, Germany, Luxembourgduring any period in which any Substitute Obligations are outstanding, the United Kingdom jurisdiction of residence of any obligor on such Substitute Obligations (or any jurisdiction from which payments are made) (each a “Relevant Jurisdiction”) or by or on behalf of any political subdivision or governmental authority therein or thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a collectively, “Relevant Taxing JurisdictionWithholding Taxes”), collectively, “Taxes”, unless the Issuer, relevant Guarantor such deduction or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencylaw. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note GuaranteeIn such event, the Issuer Company shall pay as additional Capital Payments (or such GuarantorArrears of Payments, as the case may be), will be required to pay such amount additional amounts (such amount the “Additional Amounts”) to the Class B Preferred Securityholders as may be necessary so in order that the net amount (including Additional Amounts) amounts received by each holder the Class B Preferred Securityholders and the Trust Preferred Securityholders after such deduction or withholding for or deduction (including any withholding or deduction on such Additional Amounts) will not be less than account of Withholding Taxes shall equal the amount such holder amounts that otherwise would have been received if had no such Taxes had not deduction or withholding been withheld or deducted; required, provided, however, that no such Additional Amounts shall be payable in respect of the Class B Preferred Securities
(i) in respect of each portion of the Upper Tier 2 Percentage of the Class B Preferred Securities for Class B Payment Periods ending prior to the respective Tier 1 Qualification Dates, if any, with respect to such portions, if and to the extent that the Company is unable to pay because such payment would exceed the Distributable Profits of the Bank for the fiscal year in respect of which the relevant Capital Payments are payable (after subtracting from such Distributable Profits the amount of the Capital Payments on the Upper Tier 2 Percentage of the Class B Preferred Securities and any payments on Parity Capital Securities, the Tier 1 Percentage, if any, of the Class B Preferred Securities and Preferred Tier 1 Capital Securities, if any, already paid on the basis of such Distributable Profits on or prior to the date on which such Additional Amounts will be payable payable), in which case such Additional Amounts shall be deferred and will thereupon constitute Arrears of Payments;
(ii) in respect of each portion of the Tier 1 Percentage of the Class B Preferred Securities for Class B Payment Periods beginning on or after the respective Tier 1 Qualification Dates, if any, with respect to payments made to any holder such portions, if and to the extent such that the Company is unauthorized to pay because of insufficient Distributable Profits of the Bank for the preceding fiscal year;
(iii) with respect to any Withholding Taxes that are imposed payable by reason of a Holder or beneficial owner of the Class B Preferred Securities (other than the Trust) having some connection with the Relevant Jurisdiction other than by reason only of the mere holding or beneficial ownership of Class B Preferred Securities;
(iv) with respect to any Withholding Taxes which are deducted or withheld pursuant to (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note European Council Directive 2003/48/EC or any Note Guaranteeother European Union Directive or Regulation implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income, or (ii) such holder any international treaty or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary understanding entered into for the Issuer, Guarantors or other applicable withholding agent purpose of facilitating cooperation in the reporting and collection of savings income and to make or obtain authorization to make payments without such Taxes which (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (ix) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owningStates, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, and (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1y) the payment of principalEuropean Union or Germany are parties, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) thereto.or
Appears in 1 contract
Sources: Limited Liability Company Agreement (Deutsche Bank Contingent Capital LLC III)
Additional Amounts. All payments made under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing At least 10 days prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each first date on which payment of principal, premium, if any, or interest or other amounts on this Note the Notes is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day made, and at least 10 days prior to any subsequent such date, in which case it shall be promptly thereafter), date if the Issuer or a Guarantor will be obligated to pay Additional Amounts there has been any change with respect to any such paymentthe matters set forth in the Officers' Certificate described in Section 4.20 of the Indenture, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, Book-Entry Depositary with an Officers’ ' Certificate stating that specifying whether such Additional Amounts will payment of principal, premium, if any, or interest on the Notes and under the Subsidiary Guarantee shall be payable made without withholding or deduction for, or on account of, any Taxes and the amount, if any, required to be withheld on such payments and the amount, if any, of additional amounts so payable, and will set forth such other information necessary net of amounts to enable which the Trustee Depositaries or the Paying Agent to pay such Additional Amounts owner of Book-Entry Interests is not entitled. The Book-Entry Depositary shall have no responsibility for determining whether a Depositary or any owner of a Book-Entry Interest is entitled to the holders payment of Additional Amounts, but shall be entitled to rely conclusively for this purpose on the payment dateOfficers' Certificate or on certifications from any Depositary. The Issuer or a Guarantor (as applicable) will shall, prior to the date on which the Book-Entry Depositary is required to make such payment, pay to the Trustee or the Paying Agent such Book-Entry Depositary amounts equal to any Additional Amounts andpayable on such date by the Book-Entry Depositary under this Agreement. The Issuer shall indemnify the Book-Entry Depositary for, if and hold it harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by it in reliance on any Officers' Certificate furnished to them pursuant to this Section 2.15 or failure to furnish any such Officers' Certificate. Notwithstanding anything to the contrary provided above, the Book-Entry Depositary shall pay or cause to be paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment Additional Amounts only out of such Additional Amounts. Copies of such documentation funds that shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to received by it from the Issuer or any the Subsidiary Guarantor shall apply to any successor(s) thereto.for that purpose. ARTICLE THREE THE BOOK-ENTRY DEPOSITARY AND THE NOTE CUSTODIAN
Appears in 1 contract
Sources: Deposit and Custody Agreement (MDCP Acquisitions I)
Additional Amounts. All payments made by the Issuer and the Guarantors under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must Notes and the Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment assessment, or other governmental charge of whatever nature (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom any government or any political subdivision or governmental territory or possession of any government or authority or agency or authority therein or thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Taxing Authority”) in any jurisdiction in which the Issuer or any Guarantor (including their permitted successors and assigns) is then incorporated, engaged in business or resident for tax purposes or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, ) unless the Issuer, relevant Issuer or the Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law Law or by the relevant Taxing Authority’s interpretation or administration thereof by the relevant government authority or agencythereof. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a the Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, Guarantees (as the case may be), the Issuer or the Guarantors (as the case may be) will be required to pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so that the net amount received by each Holder of the Notes (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than equal to the amount such holder the Holder of the Notes would have received if such Taxes had not been withheld or deducted; provided, however, provided that no Additional Amounts will be payable with respect to payments a payment made to any holder a Holder of the Notes (an “Excluded Holder”) to the extent extent:
(1) any such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to would not have been connected with a imposed but for the existence of any present or former connection between such Holder of the Notes and the Relevant Taxing Jurisdiction, other Jurisdiction imposing such Taxes otherwise than merely by the acquisition, ownership, holding ownership or disposition of this Note, such Note or receiving any payment in respect thereof or the exercise or enforcement of any rights under this Note or under any Note Guarantee the Notes or the receipt Guarantees; or
(2) such Holder of payments in respect the Notes would not have been liable for or subject to such withholding or deduction on account of this Note such Taxes but for the failure to make a valid declaration of non-residence or any Note Guaranteesimilar claim for exemption or to provide information concerning nationality, residence or connection with the Relevant Taxing Jurisdiction if:
(a) the making of such declaration or claim or provision of such information is required or imposed by statute, treaty, regulation, ruling or administrative practice of a Taxing Authority of the Relevant Taxing Jurisdiction as a pre-condition to an exemption from, or reduction in, such Taxes; and
(iib) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing at least 60 days prior to the receipt first payment date with respect to which the Issuer or the Guarantors shall apply this clause (2), the Issuer and the Guarantors shall have notified that Holder of the Notes in writing that they shall be required to provide such declaration, claim or information; or
(3) such Holder of the Notes would have been able to avoid such Taxes by presenting the relevant Note to another Paying Agent in a member state of the European Union (as constituted on the Issue Date) or in the United States; or
(4) any such Taxes would not have been imposed but for the presentation by the Holder of such Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due or payable or was duly provided for, whichever is later; or
(5) where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(6) of any payment on or in respect combination of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdictionthe immediately preceding clauses (1) to (5) (inclusive). FurtherIn addition, no Additional Amounts shall will not be payable with respect to (i) any Tax imposed on interest by the United States estate, inheritance, gift, sales, transfer, personal property or any political subdivision similar tax, assessment or other governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) charge with respect to the Issuer such Notes or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld which is payable otherwise than by a German custodiandeduction or withholding from payments of principal of, who is required to deduct premium or discount, if any, or interest on the withholding tax from such interest payments, provided that this Note is held in custody with such German custodianNotes. The Issuer or any Guarantor the Guarantors (as applicablethe case may be) will also (1) make any required to withhold any Taxes will make such withholding or deduction deduction; and (2) remit the full amount deducted or withheld to the relevant authority as and when required Taxing Authority in accordance with applicable lawLaw. The Issuer or any Guarantor the Guarantors (as applicablethe case may be) will use commercially make reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction Authority imposing such Taxes and Taxes. The Issuer or the Guarantors (as the case may be) will provide such certified copies use reasonable efforts to furnish to the Holders of the Notes (with a copy to the Trustee), within 30 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable Law, either certified copies of tax receipts evidencing such payment by the Issuer or the Guarantors (as the case may be) or, if such receipts are not obtainable, other evidence of such payments by the Issuer or the Guarantors (as the case may be). Wherever At least 30 days prior to each date on which any payment under or with respect to the Notes is due and payable, if the Issuer or the Guarantors (as the case may be) will be obliged to pay Additional Amounts with respect to such payment, the Issuer or the Guarantors (as the case may be) will deliver to the Trustee and the Principal Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the Paying Agent on behalf of the Trustee to pay such Additional Amounts to the Holders on the payment date. Whenever in the Indenture, this Note or any Note Guarantee Indenture there are is mentioned, in any context, (1) the payment of amounts based upon the principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Notepremium, (3) interest or (4) of any other amount payable on under, or with respect to this Note or to, any Note Guaranteeof the Notes, such reference mention shall be deemed to include mention of the payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the The Issuer or a Guarantor the Guarantors (as the case may be) will be obligated to pay Additional Amounts any stamp, transfer, court or documentary taxes, or any other excise or property taxes, charges or similar levies which arise from the original execution, delivery or registration of the Notes, the initial resale thereof by the initial purchasers and the enforcement of the Notes, the Guarantees or the Note Security Documents following the occurrence of any Event of Default with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon requestNotes. The foregoing obligations in this Paragraph 2 will provisions shall survive any termination, defeasance or discharge of the Indenture. References Notes and shall apply mutatis mutandis to any jurisdiction in this Paragraph 2 which any successor Person to the Issuer or the Guarantor, as the case may be, is organized, engaged in business, resident for tax purposes, or otherwise subject to taxation on a net income basis or any Guarantor shall apply to any successor(s) theretopolitical sub-divisions or Taxing Authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Inmarsat Launch CO LTD)
Additional Amounts. All payments made under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing At least 10 days prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each first date on which payment of principal, premium, if any, or interest or other amounts on this Note the Notes is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day made, and at least 10 days prior to any subsequent such date, in which case it shall be promptly thereafter), date if the Issuer or a Guarantor will be obligated to pay Additional Amounts there has been any change with respect to any such paymentthe matters set forth in the Officers' Certificate described in Section 4.20 of the Indenture, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, Book-Entry Depositary with an Officers’ ' Certificate stating that specifying whether such Additional Amounts will payment of principal, premium, if any, or interest on the Notes and under the Subsidiary Guarantee shall be payable made without withholding or deduction for, or on account of, any Taxes and the amount, if any, required to be withheld on such payments and the amount, if any, of additional amounts so payable, and will set forth such other information necessary net of amounts to enable which the Trustee Depositary or owner of Book-Entry Interests is not entitled. The Book-Entry Depositary shall have no responsibility for determining whether the Paying Agent to pay such Additional Amounts Depositary or any owner of a Book-Entry Interest is entitled to the holders payment of Additional Amounts, but shall be entitled to rely conclusively for this purpose on the payment dateOfficers' Certificate or on certifications from the Depositary. The Issuer or a Guarantor (as applicable) will shall, prior to the date on which the Book-Entry Depositary is required to make such payment, pay to the Trustee or the Paying Agent such Book-Entry Depositary amounts equal to any Additional Amounts andpayable on such date by the Book-Entry Depositary under this Agreement. The Issuer shall indemnify the Book-Entry Depositary for, if and hold it harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by it in reliance on any Officers' Certificate furnished to them pursuant to this Section 2.15 or failure to furnish any such Officers' Certificate. Notwithstanding anything to the contrary provided above, the Book-Entry Depositary shall pay or cause to be paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment Additional Amounts only out of such Additional Amounts. Copies of such documentation funds that shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to received by it from the Issuer or any the Subsidiary Guarantor shall apply to any successor(s) theretofor that purpose.
Appears in 1 contract
Sources: Deposit and Custody Agreement (MDCP Acquisitions I)
Additional Amounts. (a) All payments made that the Issuers make under or with respect to this Note the Notes or that the Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments by or on behalf of the any jurisdiction (1) other than the United States, Germanyany state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, Luxembourgresident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the United Kingdom Paying Agent) makes any payment on this Note or by or within any department, political subdivision or governmental authority thereof of or therein in any of the foregoing having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant such Issuer or Guarantor or other applicable withholding agent agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the either Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes this Note or any Note Guarantee, the such Issuer or such Guarantor, as the case may be, will be required to shall pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder beneficial owner of the Notes, after such withholding or deduction (including any withholding or deduction on such in respect of any Additional Amounts) will not be less than the amount such holder the beneficial owner would have received if such Taxes had not been withheld or deducted; provided.
(b) None of the Issuers or Guarantors will, however, that no pay Additional Amounts will be payable with in respect to payments made to or on account of:
(i) any holder Taxes, to the extent such Taxes are imposed or levied by a Relevant Taxing Jurisdiction by reason of (i) such holder the Holder’s or beneficial owner being considered to be owner’s present or to have been connected former connection with a such Relevant Taxing Jurisdiction, Jurisdiction (other than by the acquisitionmere receipt, ownership, holding or disposition of this Note, or by reason of the receipt of any payments in respect of any Notes or any Guarantee, or the exercise or enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note Notes or any Note Guarantee, or );
(ii) any Taxes to the extent such Taxes are imposed or withheld by reason of the failure of the Holder or beneficial owner of this Note, following the Issuers’ written request addressed to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements (to the extent such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for do so), whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the Issuerrate of deduction or withholding of, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(iii) any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to Guarantee;
(iv) any Tax imposed on interest or with respect to any payment by any of the United States Issuers or any political subdivision Guarantors to the Holder if such Holder is a fiduciary or governmental authority thereof partnership or therein by reason of any Person other than the sole beneficial owner holding or owning, actually or constructively, 10% or more of such payment to the total combined voting power extent that such Taxes would not have been imposed on such payment had such beneficial owner been the holder of all classes of stock of the Issuer or any Guarantor entitled to vote, such Note;
(iivi) any Tax that is imposed on interest or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union or the United States Kingdom;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had this Note been presented on the last day of such 30-day period);
(viii) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 as of the August 2019 Issue Date (or any political subdivision amended or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation successor version that is a related person within the meaning of substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 864(d)(41471(b)(1) of the Internal Revenue Code of 1986, 1986 as amended of the August 2019 Issue Date (the “Code”) with respect to the Issuer or any Guarantoramended or successor version described above), and including (iiifor the avoidance of doubt) any Tax imposed on interest by intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or foregoing; or
(ivix) any United States federal tax imposed pursuant to FATCAcombination of the foregoing.
(c) The Issuers and the Guarantors, if the applicable withholding agents, shall (vi) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or .
(d) At least 30 calendar days prior to each date on which any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note Guarantee is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer Issuers or a any Guarantor will shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to this Note or any such paymentGuarantee is due and payable, in which case it will be promptly thereafter), the Issuer will promptly furnish Issuers shall deliver to the Trustee and Trustee, with a copy to the Paying Agent, if other than the Trustee, with an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set setting forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 of the Indenture stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (i) the execution, issue, delivery or registration of this Note or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, this Note or any Guarantee. Upon written request, any of the Issuers or a Guarantor (as applicable) will pay furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or such Guarantor (as the Paying Agent case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02 of the Indenture, in such Additional Amounts andform as provided in the normal course by the taxing authority imposing such Taxes. If, if paid notwithstanding the efforts of such Issuer or Guarantor to a Paying Agent obtain such receipts, the same are not obtainable, such Issuer or such Guarantor will provide the Trustee or such Holder with other than evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, shall promptly the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee with documentation evidencing such information as may be reasonably available to such Issuers and the Guarantors (and not otherwise in the possession of the Trustee) to enable the determination of the amount of any withholding taxes attributable to any particular Holder(s).
(e) Whenever the Indenture or this Note refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to this or any other Note (including payments thereof made pursuant to a Guarantee), such reference includes the payment of Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph , if applicable.
(f) This paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References Indenture and shall apply mutatis mutandis to any jurisdiction (other than the United States, any state thereof or the District of Columbia) in this Paragraph 2 which any successor Person to any of the Issuer Issuers or Guarantors is organized, resident or doing business for tax purposes or any Guarantor shall apply jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on this or any other Note (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to any successor(s) theretotax.
Appears in 1 contract
Sources: Indenture (Ardagh Group S.A.)
Additional Amounts. (a) All payments made that the Issuer makes under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must Notes shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction in which the Issuer is organized or is a resident for tax purposes or from or through which the Issuer makes any payment on the Notes or by or within any Note Guarantee is made, department or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposeseach, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent Issuer is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note GuaranteeNotes, the Issuer or such Guarantor, as the case may be, will be required to shall pay such amount additional amounts in cash (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder Holder after such withholding or deduction (including any withholding or deduction on such attributable to Additional AmountsAmounts payable hereunder) will not be less than the amount such holder the Holder would have received if such Taxes had not been withheld or deducted; provided.
(b) Notwithstanding the foregoing, however, that the Issuer shall pay no Additional Amounts will be payable with respect to payments made to a Holder or beneficial owner of any holder Note:
(i) to the extent the Taxes giving rise to such Taxes are Additional Amounts would not have been imposed but for the Holder’s or beneficial owner’s present or former connection with the Relevant Taxing Jurisdiction (other than a connection arising by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisitionacquisitions, ownership, holding or disposition of this Note, Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under this Note or under any Note Guarantee Notes or the receipt of payments in respect of this Note or any Note Guarantee, or Indenture);
(ii) to the extent the Taxes giving rise to such holder Additional Amounts would not have been imposed but for the failure of the Holder or beneficial owner not completing any procedural formalities that it of Notes, following the Issuer’s written request addressed to the Holder, to the extent such Holder or beneficial owner is legally eligible entitled to complete and are necessary for the Issuerdo so, Guarantors to comply with any certification, identification, information or other applicable reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding agent to make or obtain authorization to make payments without such of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior to a certification that the receipt of any payment on Holder or beneficial owner is not resident in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another the Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to ;
(i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”iii) with respect to the Issuer any estate, inheritance, gift, sales, transfer or personal property tax or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or similar Taxes;
(iv) any United States federal tax if such Holder is a fiduciary or partnership or Person other than the sole beneficial owner of such payment and the Taxes giving rise to such Additional Amounts would not have been imposed pursuant on such payment had such Holder been the beneficiary, partner or sole beneficial owner, as the case may be, of such Note (but only if there is no material cost or expense associated with transferring such Note to FATCAsuch beneficiary, partner or sole beneficial owner and no restriction on such transfer that is outside the control of such beneficiary, partner or sole beneficial owner);
(v) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the presentation by the Holder of any Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(vi) with respect to German tax residents any Tax withheld by withholding or deduction that is imposed on a German custodian, who payment to an individual and that is required to deduct be made pursuant to the withholding tax from European Council Directive on the taxation of savings income which was adopted by the ECOFIN Council on June 3, 2003 or any law implementing or complying with, or introduced in order to conform to, such interest paymentsdirective (the “EU Savings Tax Directive”) or is required to be made pursuant to the Agreement between the European Community and the Swiss Confederation dated of October 26, provided that this Note is held 2004 providing for measures equivalent to those laid down in custody the EU Savings Tax Directive (the “EU-Swiss Savings Tax Agreement”) or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, such agreement; and
(vii) with such German custodianrespect to any combination of the items listed above. The Issuer or any Guarantor shall (as applicableA) required to withhold any Taxes will make such withholding or deduction of Taxes required by applicable law and (B) remit the full amount of Taxes so deducted or withheld to the relevant authority as and when required Taxing Authority in accordance with all applicable lawlaws. The Issuer or any Guarantor (as applicable) will use commercially shall make reasonable best efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will Taxes. The Issuer shall provide such certified copies to the Trustee. Wherever in , within a reasonable time after the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) date the payment of principalany Taxes so deducted or withheld are due pursuant to applicable law, (2) purchase prices in connection with either a purchase certified copy of Notes under tax receipts evidencing such payment or, if such tax receipts are not reasonably available to the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note GuaranteeIssuer, such reference shall be deemed to include other documentation that provides reasonable evidence of such payment of Additional Amounts as described under this heading to by the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. Issuer.
(c) At least 30 calendar days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on this Note with respect to the Notes is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer or a Guarantor will shall be obligated to pay Additional Amounts with respect to any such paymentpayment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it will be promptly thereafter), the Issuer will promptly furnish shall deliver to the Trustee and the Paying Agent, if other than the Trustee, with Agent an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set setting forth such other information as is necessary to enable the such Trustee or the and Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer or shall promptly publish a Guarantor (as applicable) will pay to the Trustee or the Paying Agent notice in accordance with Section 13.02 stating that such Additional Amounts andwill be payable and describing the obligation to pay such amounts. In addition, if paid to a Paying Agent other than the TrusteeIssuer, shall promptly provide pay any present or future stamp, issue, registration, court documentation, excise or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the Trustee with documentation evidencing execution, issue, registration or delivery of the payment Notes or any other document or instrument referred to thereunder and any such taxes, charges or duties imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes and/or any other such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. document or instrument.
(d) The foregoing obligations in this Paragraph 2 will provisions shall survive any termination, defeasance or discharge of the indenture and shall apply mutatis mutandis to any jurisdiction in which any Surviving Entity (as defined in Section 5.01(b)(i)) is organized or resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein or any jurisdiction from or through which payment is made by such Surviving Entity.
(e) Whenever the Indenture or the Notes refer to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note, such reference shall be deemed to include mention of the payment of Additional Amounts or indemnification payments as described hereunder, to the extent that in such context Additional Amounts or indemnification payments are, were or would be payable in respect thereof pursuant to Section 4.12 of the Indenture. References The Issuer shall indemnify and hold harmless the Holders and, upon written request of any Holder, reimburse such Holder for the amount of (i) any Taxes levied or imposed by a Relevant Taxing Jurisdiction and payable by such Holder in connection with payments made under or with respect to the Notes held by such Holder; and (ii) any Taxes levied or imposed with respect to any reimbursement under the foregoing clause (i) or this clause (ii), so that the net amount received by such Holder after such reimbursement shall not be less than the net amount such Holder would have received if the Taxes giving rise to the reimbursement described in clauses (i) and/or (ii) had not been imposed, provided, however, that the indemnification obligation provided for in this Paragraph 2 paragraph (g) shall not extend to Taxes imposed for which the eligible Holder of the Notes would not have been eligible to receive payment of Additional Amounts hereunder or to the Issuer or any Guarantor shall apply extent such Holder received Additional Amounts with respect to any successor(s) theretosuch payments.
Appears in 1 contract
Sources: Indenture (Digicel Group LTD)
Additional Amounts. All payments to be made under or with in respect to this Note under of the Indenture or pursuant to any Note Guarantee must Notes and Guarantees shall be made free and clear of of, and without deduction or withholding or deduction for or on account of of, any present or future taxTaxes, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) except to the extent such Taxes are imposed or levied by or on behalf of applicable law. In the (1) the United States, Germany, Luxembourg, the United Kingdom or event that any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered Taxes are required by applicable law to be a resident deducted or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes withheld from any payment required to be made under or with in respect to of the Notes or any Note GuaranteeNotes, the Issuer Guarantees or otherwise under this Indenture, then the amount of such Guarantor, as the case may be, will payment shall be required to pay such increased by an amount (such amount the “Additional Amounts”) as may be necessary so such that the net amount (including Additional Amounts) actually received by each holder the applicable recipients or beneficial owner of such payment in respect of such payment, after such withholding or deduction for or on account of such Taxes, is an amount equal to the amount that would have been received by the applicable recipient(s) or beneficial owner of such payment in respect of such payment had no such Taxes (including any withholding or deduction on Taxes payable in respect of such Additional Amounts) will not been required to be less than so deducted or withheld. Furthermore, the amount of any Taxes required to be withheld or deducted from any payment made in respect of the Notes, the Guarantees or otherwise under this Indenture shall be withheld or deducted from such holder would have received if payment and paid to the taxing authority imposing such Taxes had not been withheld in accordance with applicable law. Together with every payment made under this Indenture requiring the withholding of any Taxes, the Issuer shall furnish to the Trustee a statement of the withholding being made, if any, in the form of a debit notice on account of tax withholding or deducted; providedother similar document which evidences that the withholding was duly made. As promptly as practicable thereafter, howeverthe Issuer shall provide the Trustee documentation evidencing payment of Taxes in respect of which the Issuer has paid any Additional Amounts. Copies of such documentation shall be made available to the Holders or any Paying Agent upon request. Notwithstanding the preceding sentences, that no such Additional Amounts will be payable with in respect to payments made to of:
(1) any holder to the extent such Taxes are Tax assessed or imposed by reason of (i) such holder any present or former connection between the applicable recipient or beneficial owner of such payment and the United States, including such applicable recipient or beneficial owner having a permanent establishment in the United States, being considered to be organized under the laws of the United States or to have been connected with a Relevant Taxing Jurisdiction, being an actual or deemed resident of the United States (other than by solely as a result of the acquisition, ownership, holding ownership or disposition of this Notea Note or a beneficial interest therein, the enforcement of rights under this a Note or under any Note Guarantee or the receipt of payments any payment in respect of this thereof under a Note or any Note Guarantee);
(2) any estate, inheritance, gift, personal property, sales, use, excise, transfer or other similar Tax imposed with respect to such payment;
(ii3) any such holder Taxes that would not have been imposed but for the failure of the applicable recipient or beneficial owner not completing of such payment to comply with any procedural formalities that it is legally eligible to complete and are necessary for the Issuercertification, Guarantors identification, information, documentation or other reporting requirement to the extent (a) such compliance is required by applicable law or an applicable treaty as a precondition to exemption from, or reduction in the rate of deduction or withholding agent to make or obtain authorization to make payments without of, such Taxes and (including, without limitation, providing prior to b) at least 30 days before the receipt of any first payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable date with respect to which the obligor with respect to a payment shall apply this clause (i3), such obligor shall have notified such recipient in writing that such recipient will be required to comply with such requirement;
(4) any such Taxes required to be withheld by any Paying Agent from any payment, if such Tax imposed on interest results from the presentation of such Note for payment (where presentation is required) and the payment can be made in a commercially reasonable manner without such withholding by the United States or presentation of such Note to any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) other Paying Agent with respect to the Issuer or Notes;
(5) any Guarantor, Note presented for payment (iiiwhere presentation is required) more than 30 days after the relevant payment is first made available for payment to the applicable recipient (except to the extent that such recipient would have been entitled to Additional Amounts had the Note been presented during such 30-day period);
(6) any Tax imposed on interest payable other than by the United States withholding or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or deduction;
(iv7) any United States federal tax withholding Tax imposed pursuant to under FATCA; or
(8) any combination of the circumstances described in clauses (1) through (7), (v) nor will any Additional Amounts be paid with respect to German tax residents any Tax withheld by payment to a German custodian, recipient who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer a fiduciary or partnership or any Guarantor (as applicable) required to withhold any Taxes will make Person other than the sole beneficial owner of such withholding or deduction and remit the full amount deducted or withheld payment to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been in the place of such recipient. In addition, the Issuer shall pay any and all Other Taxes imposed by the relevant taxing authority as and when required imposing such Other Taxes in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies obligation of tax receipts evidencing the payment by the Issuer to pay Additional Amounts will survive the repayment of the Notes and the sale or such Guarantor transfer of the Notes (as applicableor beneficial interests therein) by any investor. For purposes of the provisions described in this Section 2.12, the term “applicable recipient” means the direct nominee of any beneficial owner of the relevant Note, which holds such beneficial owner’s interest in such Note. In the event that after the Issue Date there has been any change with respect to any Taxes so required by applicable law to be deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies any payment required to be made in respect of the Notes or otherwise under this Indenture causing a change in the Additional Amounts payable, at least thirty (30) days prior to the Trustee. Wherever first date of payment of interest on the Notes and at least thirty (30) days prior to each date, if any, of payment of principal or interest thereafter the Issuer shall furnish the Trustee and each Paying Agent with an Officers’ Certificate (but only if there has been any change with respect to the matters set forth in any previously delivered Officers’ Certificate) instructing the Indenture, this Note Trustee and such Paying Agent as to whether such payment of principal of or any Note Guarantee interest on such Notes shall be made without deduction or withholding for or on account of any tax, duty, assessment or other governmental charge. If any such deduction or withholding shall be required then such certificate shall specify the amount, if any, required to be deducted or withheld on such payment to the relevant recipient, and the Issuer shall pay or cause to be paid to the Trustee or such Paying Agent Additional Amounts, if any, required by this Section 2.12. The Issuer agrees to indemnify the Trustee and each Paying Agent for, and to hold them harmless against, any loss, liability or expense (including attorneys’ fees) reasonably incurred without gross negligence or willful misconduct on their part arising out of or in connection with actions taken or omitted by it in reliance on any Officers’ Certificate furnished pursuant to this Section 2.12. Whenever in this Indenture there are is mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Notepremium, (3) if any, interest or (4) any other amount payable on under or with respect to this Note or any Note GuaranteeNote, such reference mention shall be deemed to include mention of the payment of Additional Amounts as described under provided for in this heading Section 2.12, to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts thereof pursuant to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing provisions of this Section 2.12 and express mention of the payment of Additional Amounts in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) theretoexpress mention is not made.
Appears in 1 contract
Sources: Indenture (RCS Capital Corp)
Additional Amounts. (a) All payments made that the Issuers make under or with respect to this Note the Notes or that the Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments by or on behalf of the any jurisdiction (1) other than the United States, Germanyany state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, Luxembourgresident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the United Kingdom Paying Agent) makes any payment on this Note or by or within any department or political subdivision or governmental authority thereof of or therein in any of the foregoing having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant such Issuer or Guarantor or other applicable withholding agent agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the an Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes this Note or any Note Guarantee, the such Issuer or such Guarantor, as the case may be, will be required to shall pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder beneficial owner of the Notes, after such withholding or deduction (including any withholding or deduction on such in respect of any Additional Amounts) will not be less than the amount such holder the beneficial owner would have received if such Taxes had not been withheld or deducted; provided.
(b) None of the Issuers or Guarantors will, however, that no pay Additional Amounts will be payable with in respect to payments made to or on account of:
(i) any holder Taxes, to the extent such Taxes are imposed or levied by a Relevant Taxing Jurisdiction by reason of (i) such holder the Holder’s or beneficial owner being considered to be owner’s present or to have been connected former connection with a such Relevant Taxing Jurisdiction, Jurisdiction (other than by the acquisitionmere receipt, ownership, holding or disposition of this Note, or by reason of the receipt of any payments in respect of any Notes or any Guarantee, or the exercise or enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note Notes or any Note Guarantee, or );
(ii) any Taxes to the extent such Taxes are imposed or withheld by reason of the failure of the Holder or beneficial owner of this Note, following the Issuers’ written request addressed to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements (to the extent such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for do so), whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the Issuerrate of deduction or withholding of, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(iii) any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to Guarantee;
(iv) any Tax imposed on interest or with respect to any payment by any of the United States Issuers or any political subdivision Guarantors to the Holder if such Holder is a fiduciary or governmental authority thereof partnership or therein by reason of any Person other than the sole beneficial owner holding or owning, actually or constructively, 10% or more of such payment to the total combined voting power extent that such Taxes would not have been imposed on such payment had such beneficial owner been the holder of all classes of stock of the Issuer or any Guarantor entitled to vote, such Note;
(iivi) any Tax that is imposed on interest or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the United States relevant Notes to another paying agent in a member state of the European Union;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had this Note been presented on the last day of such 30-day period);
(viii) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the European Council Directive 2003/48/EC or any political subdivision other Directive implementing the conclusions of the ECOFIN Council meetings of November 26 and 27, 2000 on the taxation of savings income or governmental authority any law implementing or complying with, or introduced in order to conform to, any such Directive;
(ix) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 as of the Issue Date (or therein by reason of any beneficial owner being a controlled foreign corporation amended or successor version that is a related person within the meaning of substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 864(d)(41471(b)(1) of the Internal Revenue Code of 1986, 1986 as amended of the Issue Date (the “Code”) with respect to the Issuer or any Guarantoramended or successor version described above), and including (iiifor the avoidance of doubt) any Tax imposed on interest by intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or foregoing; or
(ivx) any United States federal tax imposed pursuant to FATCAcombination of the foregoing.
(c) The Issuers and the Guarantors, if the applicable withholding agent, shall (vi) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or .
(d) At least 30 calendar days prior to each date on which any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note Guarantee is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer Issuers or a any Guarantor will shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to this Note or any such paymentGuarantee is due and payable, in which case it will be promptly thereafter), the Issuer will promptly furnish Issuers shall deliver to the Trustee and Trustee, with a copy to the Paying Agent, if other than the Trustee, with an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set setting forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 of the Indenture stating that such Additional Amounts will be payable and describing its obligations to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (i) the execution, issue, delivery or registration of this Note or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, this Note or any Guarantee. Upon written request, any of the Issuers or a Guarantor (as applicable) will pay furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or such Guarantor (as the Paying Agent case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02 of the Indenture, in such Additional Amounts andform as provided in the normal course by the taxing authority imposing such Taxes. If, if paid notwithstanding the efforts of such Issuer or Guarantor to a Paying Agent obtain such receipts, the same are not obtainable, such Issuer or such Guarantor will provide the Trustee or such Holder with other than evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, shall promptly the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee with documentation evidencing such information as may be reasonably available to such Issuers and the Guarantors (and not otherwise in the possession of the Trustee) to enable the determination of the amount of any withholding taxes attributable to any particular Holder(s).
(e) Whenever the Indenture or this Note refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to this or any other Note (including payments thereof made pursuant to a Guarantee), such reference includes the payment of Additional Amounts. Copies of such documentation shall be made available to the holders upon request. , if applicable.
(f) The foregoing obligations in this Paragraph 2 preceding provisions will survive any termination, defeasance or discharge of the Indenture. References Indenture and shall apply mutatis mutandis to any jurisdiction (other than the United States, any state thereof or the District of Columbia) in this Paragraph 2 which any successor Person to any of the Issuer Issuers or Guarantors is organized, resident or doing business for tax purposes or any Guarantor shall apply jurisdiction from or through which any such person (or its agents, including the Paying Agent)makes any payment on this or any other Note (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to any successor(s) theretotax.
Appears in 1 contract
Additional Amounts. (a) All payments and deliveries made by, or on behalf of, the Company or any successor to the Company under or with respect to this Note under Indenture and the Indenture or pursuant to any Note Guarantee must Notes, including, but not limited to, payments of principal (including, if applicable, the Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price), payments of interest and payments of cash and/or deliveries of ADSs upon exchange of the Notes, shall be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other governmental charge (including penalties, interest and other liabilities related thereto) charges of whatever nature imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or within any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized Company or otherwise considered any successor to be a resident or engaged in business the Company is, for tax purposes, organized or any political subdivision resident or governmental authority thereof or therein having the power to tax doing business (each each, as applicable, a “Relevant Taxing Jurisdiction”) or through which payment is made or deemed made (together with each Relevant Taxing Jurisdiction, a “Relevant Jurisdiction,” and in each case, any political subdivision or taxing authority thereof or therein), collectively, “Taxes”, unless the Issuer, relevant Guarantor such withholding or other applicable withholding agent deduction is required to withhold or deduct Taxes by law or by regulation or governmental policy having the interpretation force of law. The Trustee shall be entitled to make any withholding or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf deduction pursuant to an agreement described in Section 1471(b) of the Issuer Code or otherwise imposed pursuant to Section 1471 through 1474 of the Code and any regulations or agreements thereunder or official interpretation thereof. The Company will provide the Trustee with sufficient information so as to enable the Trustee to determine whether or not it is obliged to make such a Guarantor withholding or deduction. In the event that any such withholding or deduction is so required to withhold required, the Company or deduct any amount for or on account of Taxes from any payment made under or with respect successor to the Notes or any Note Guarantee, the Issuer or Company shall pay to each Holder such Guarantor, as the case may be, will be required to pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder the beneficial owner after such withholding or deduction (including and after deducting any taxes on the Additional Amounts) shall equal the amounts that would have been received by such Holder had no such withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deductedrequired; provided, however, provided that no Additional Amounts will shall be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of payable:
(i) such holder for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or beneficial owner being considered to be or to have been connected with a of such Note and the Relevant Taxing Jurisdiction, other than by the acquisition, ownership, merely holding or disposition of this Note, the enforcement of rights under this such Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guaranteethereunder, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having had a permanent establishment therein;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of (including the Redemption Price, the Repurchase Price and Fundamental Change Repurchase Price, if applicable) and interest on such Note or the payment of cash and/or delivery of ADSs upon exchange of such Note became due and payable pursuant to the receipt terms thereof or was made or duly provided for;
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(C) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(D) any tax required to be withheld or deducted under Sections 1471 to 1474 of the Code (or any amended or successor versions of such Sections) (“FATCA”), any regulations or other official guidance thereunder, any intergovernmental agreement entered into in connection with FATCA, or any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA or an intergovernmental agreement; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) or (D); or
(ii) with respect to any payment of the principal of (including the Redemption Price, the Repurchase Price and Fundamental Change Repurchase Price, if applicable) and interest on such Note or the payment of cash and/or delivery of ADSs upon exchange of such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a partner or member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner, member or beneficial owner been the Holder thereof.
(b) Any reference in this Indenture or the Notes in any context to the payment of cash and/or delivery of ADSs upon exchange of the Notes or the payment of principal of (including the Redemption Price, the Repurchase Price and Fundamental Change Repurchase Price, if applicable) and interest on any Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be other amount payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to that amount pursuant to this Section 4.07.
(c) If the Company or its successor is required to make any such paymentdeduction or withholding from any payments with respect to the Notes, the Issuer it will promptly furnish deliver to the Trustee and official tax receipts evidencing the Paying Agent, if other than remittance to the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and relevant tax authorities of the amounts so payable, and will set forth such other information necessary to enable the Trustee withheld or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor deducted.
(as applicabled) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will shall survive any termination, defeasance termination or discharge of the this Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) thereto.
Appears in 1 contract
Sources: Indenture (Trip.com Group LTD)
Additional Amounts. (a) All payments made that the Issuers make under or with respect to this Note the Notes or that the Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments by or on behalf of the any jurisdiction (1) other than the United States, Germanyany state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, Luxembourgresident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the United Kingdom Paying Agent) makes any payment on this Note or by or within any department, political subdivision or governmental authority thereof of or therein in any of the foregoing having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant such Issuer or Guarantor or other applicable withholding agent agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the an Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes this Note or any Note Guarantee, the such Issuer or such Guarantor, as the case may be, will be required to shall pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder beneficial owner of the Notes, after such withholding or deduction (including any withholding or deduction on such in respect of any Additional Amounts) will not be less than the amount such holder the beneficial owner would have received if such Taxes had not been withheld or deducted; provided.
(b) None of the Issuers or Guarantors will, however, that no pay Additional Amounts will be payable with in respect to payments made to or on account of:
(i) any holder Taxes, to the extent such Taxes are imposed or levied by a Relevant Taxing Jurisdiction by reason of (i) such holder the Holder’s or beneficial owner being considered to be owner’s present or to have been connected former connection with a such Relevant Taxing Jurisdiction, Jurisdiction (other than by the acquisitionmere receipt, ownership, holding or disposition of this Note, or by reason of the receipt of any payments in respect of any Notes or any Guarantee, or the exercise or enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note Notes or any Note Guarantee, or );
(ii) any Taxes to the extent such Taxes are imposed or withheld by reason of the failure of the Holder or beneficial owner of this Note, following the Issuers’ written request addressed to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements (to the extent such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for do so), whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the Issuerrate of deduction or withholding of, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(iii) any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to Guarantee;
(iv) any Tax imposed on interest or with respect to any payment by any of the United States Issuers or any political subdivision Guarantors to the Holder if such Holder is a fiduciary or governmental authority thereof partnership or therein by reason of any Person other than the sole beneficial owner holding or owning, actually or constructively, 10% or more of such payment to the total combined voting power extent that such Taxes would not have been imposed on such payment had such beneficial owner been the holder of all classes of stock of the Issuer or any Guarantor entitled to vote, such Note;
(iivi) any Tax that is imposed on interest or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the United States relevant Notes to another paying agent in a member state of the European Union;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had this Note been presented on the last day of such 30-day period);
(viii) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the European Council Directive 2003/48/EC, as amended or supplemented from time to time, including through European Council Directive 2014/48/EC or any political subdivision other Directive implementing the conclusions of the ECOFIN Council meetings of November 26 and 27, 2000 on the taxation of savings income or governmental authority any law implementing or complying with, or introduced in order to conform to, any such Directive;
(ix) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 as of the Issue Date (or therein by reason of any beneficial owner being a controlled foreign corporation amended or successor version that is a related person within the meaning of substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 864(d)(41471(b)(1) of the Internal Revenue Code of 1986, 1986 as amended of the Issue Date (the “Code”) with respect to the Issuer or any Guarantoramended or successor version described above), and including (iiifor the avoidance of doubt) any Tax imposed on interest by intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or foregoing; or
(ivx) any United States federal tax imposed pursuant to FATCAcombination of the foregoing.
(c) The Issuers and the Guarantors, if the applicable withholding agent, shall (vi) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or .
(d) At least 30 calendar days prior to each date on which any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note Guarantee is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer Issuers or a any Guarantor will shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to this Note or any such paymentGuarantee is due and payable, in which case it will be promptly thereafter), the Issuer will promptly furnish Issuers shall deliver to the Trustee and Trustee, with a copy to the Paying Agent, if other than the Trustee, with an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set setting forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 of the Indenture stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (i) the execution, issue, delivery or registration of this Note or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, this Note or any Guarantee. Upon written request, any of the Issuers or a Guarantor (as applicable) will pay furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or such Guarantor (as the Paying Agent case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02 of the Indenture, in such Additional Amounts andform as provided in the normal course by the taxing authority imposing such Taxes. If, if paid notwithstanding the efforts of such Issuer or Guarantor to a Paying Agent obtain such receipts, the same are not obtainable, such Issuer or such Guarantor will provide the Trustee or such Holder with other than evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, shall promptly the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee with documentation evidencing such information as may be reasonably available to such Issuers and the Guarantors (and not otherwise in the possession of the Trustee) to enable the determination of the amount of any withholding taxes attributable to any particular Holder(s).
(e) Whenever the Indenture or this Note refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to this or any other Note (including payments thereof made pursuant to a Guarantee), such reference includes the payment of Additional Amounts. Copies of such documentation shall be made available to the holders upon request. , if applicable.
(f) The foregoing obligations in this Paragraph 2 preceding provisions will survive any termination, defeasance or discharge of the Indenture. References Indenture and shall apply mutatis mutandis to any jurisdiction (other than the United States, any state thereof or the District of Columbia) in this Paragraph 2 which any successor Person to any of the Issuer Issuers or Guarantors is organized, resident or doing business for tax purposes or any Guarantor shall apply jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on this or any other Note (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to any successor(s) theretotax.
Appears in 1 contract
Additional Amounts. TRICOM and each Guarantor will indemnify and hold harmless the Dealer Manager in its capacity as dealer manager hereunder and, subject to the following exception, not in its capacity as a holder of Old Notes or New Notes, as applicable, (except that TRICOM shall indemnify the Dealer Manager in its capacity as a holder of Old Notes or New Notes, as applicable, to the extent that TRICOM indemnifies all holders of New Notes or Old Notes, as applicable) against any documentary, stamp, registration or other tax, charge, levy or other amounts imposed by the Dominican Republic, on or in connection with the Exchange Offer Transactions or the Exchange Offer Materials. All payments made under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must be made free to the Dealer Manager and clear of and other soliciting Dealers by TRICOM or any Guarantor hereunder shall be made without withholding or deduction for or on account of any present or future taxtaxes, duty, levy, impost, assessment duties or other governmental charge (including penalties, interest and other liabilities related thereto) charges whatsoever imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom Dominican Republic or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee taxing authority therein) unless TRICOM or such Guarantor is madecompelled by law to deduct or withhold such taxes, duties or charges. In that event, TRICOM or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be required to shall pay such amount (such amount the “Additional Amounts”) additional amounts as may be necessary so in order that the net amount (including Additional Amounts) amounts received by each holder after such withholding or deduction (including any shall equal the amounts that would have been received if no withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deductedmade; provided, howeverPROVIDED HOWEVER, that no Additional Amounts will such additional amounts shall be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder in respect of any tax, duty or beneficial owner being considered to be or to governmental charge that would not have been connected with a Relevant Taxing Jurisdictionimposed but for the existence of any present or former connection between the Dealer Manager and the relevant taxing jurisdiction, other than by the acquisitionentering into or performing this Agreement, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments and (ii) in respect of this Note any tax, duty or any Note Guarantee, or (ii) such holder or beneficial owner governmental charge that would not completing any procedural formalities that it is legally eligible to complete and are necessary have been imposed but for the Issuerfailure of the Dealer Manager to comply with any certification, Guarantors identification, documentation or information or other applicable withholding agent to make or obtain authorization to make payments without reporting requirement if such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form compliance is required by another Relevant Taxing Jurisdiction). Furtherlaw, no Additional Amounts shall be payable with respect regulation, administrative practice or applicable treaty as a precondition to (i) any Tax imposed on interest by the United States or any political subdivision exemption from or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into reduction in the ordinary course rate of its trade deduction or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) theretotaxes.
Appears in 1 contract
Additional Amounts. (a) All payments made that the Issuers make under or with respect to this Note the Notes or that the Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments by or on behalf of the any jurisdiction (1) other than the United States, Germanyany state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, Luxembourgresident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the United Kingdom Paying Agent) makes any payment on this Note or by or within any department or political subdivision or governmental authority thereof of or therein in any of the foregoing having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant such Issuer or Guarantor or other applicable withholding agent agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the an Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes this Note or any Note Guarantee, the such Issuer or such Guarantor, as the case may be, will be required to shall pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder beneficial owner of the Notes, after such withholding or deduction (including any withholding or deduction on such in respect of any Additional Amounts) will not be less than the amount such holder the beneficial owner would have received if such Taxes had not been withheld or deducted; provided.
(b) None of the Issuers or Guarantors will, however, that no pay Additional Amounts will be payable with in respect to payments made to or on account of:
(i) any holder Taxes, to the extent such Taxes are imposed or levied by a Relevant Taxing Jurisdiction by reason of (i) such holder the Holder’s or beneficial owner being considered to be owner’s present or to have been connected former connection with a such Relevant Taxing Jurisdiction, Jurisdiction (other than by the acquisitionmere receipt, ownership, holding or disposition of this Note, or by reason of the receipt of any payments in respect of any Notes or any Guarantee, or the exercise or enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note Notes or any Note Guarantee, or );
(ii) any Taxes to the extent such Taxes are imposed or withheld by reason of the failure of the Holder or beneficial owner of this Note, following the Issuers’ written request addressed to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements (to the extent such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for do so), whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the Issuerrate of deduction or withholding of, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(iii) any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to Guarantee;
(iv) any Tax imposed on interest or with respect to any payment by any of the United States Issuers or any political subdivision Guarantors to the Holder if such Holder is a fiduciary or governmental authority thereof partnership or therein by reason of any Person other than the sole beneficial owner holding or owning, actually or constructively, 10% or more of such payment to the total combined voting power extent that such Taxes would not have been imposed on such payment had such beneficial owner been the holder of all classes of stock of the Issuer or any Guarantor entitled to vote, such Note;
(iivi) any Tax that is imposed on interest or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the United States relevant Notes to another paying agent in a member state of the European Union;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had this Note been presented on the last day of such 30-day period);
(viii) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the European Council Directive 2003/48/EC or any political subdivision other Directive implementing the conclusions of the ECOFIN Council meetings of November 26 and 27, 2000 on the taxation of savings income or governmental authority any law implementing or complying with, or introduced in order to conform to, any such Directive;
(ix) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 as of the Issue Date (or therein by reason of any beneficial owner being a controlled foreign corporation amended or successor version that is a related person within the meaning of substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 864(d)(41471(b)(1) of the Internal Revenue Code of 1986, 1986 as amended of the Issue Date (the “Code”) with respect to the Issuer or any Guarantoramended or successor version described above), and including (iiifor the avoidance of doubt) any Tax imposed on interest by intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or foregoing; or
(ivx) any United States federal tax imposed pursuant to FATCAcombination of the foregoing.
(c) The Issuers and the Guarantors, if the applicable withholding agent, shall (vi) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or .
(d) At least 30 calendar days prior to each date on which any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note Guarantee is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer Issuers or a any Guarantor will shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to this Note or any such paymentGuarantee is due and payable, in which case it will be promptly thereafter), the Issuer will promptly furnish Issuers shall deliver to the Trustee and Trustee, with a copy to the Paying Agent, if other than the Trustee, with an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set setting forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 of the Indenture stating that such Additional Amounts will be payable and describing its obligations to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (i) the execution, issue, delivery or registration of this Note or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, this Note or any Guarantee. Upon written request, any of the Issuers or a Guarantor (as applicable) will pay furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or such Guarantor (as the Paying Agent case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02 of the Indenture, in such Additional Amounts andform as provided in the normal course by the taxing authority imposing such Taxes. If, if paid notwithstanding the efforts of such Issuer or Guarantor to a Paying Agent obtain such receipts, the same are not obtainable, such Issuer or such Guarantor will provide the Trustee or such Holder with other than evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, shall promptly the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee with documentation evidencing such information as may be reasonably available to such Issuers and the Guarantors (and not otherwise in the possession of the Trustee) to enable the determination of the amount of any withholding taxes attributable to any particular Holder(s).
(e) Whenever the Indenture or this Note refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to this or any other Note (including payments thereof made pursuant to a Guarantee), such reference includes the payment of Additional Amounts. Copies of such documentation shall be made available to the holders upon request. , if applicable.
(f) The foregoing obligations in this Paragraph 2 preceding provisions will survive any termination, defeasance or discharge of the Indenture. References Indenture and shall apply mutatis mutandis to any jurisdiction (other than the United States, any state thereof or the District of Columbia) in this Paragraph 2 which any successor Person to any of the Issuer Issuers or Guarantors is organized, resident or doing business for tax purposes or any Guarantor shall apply jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on this or any other Note (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to any successor(s) theretotax.
Appears in 1 contract
Additional Amounts. (a) All payments made under or with respect to this Note under the Indenture or pursuant to any a Note Guarantee must will be made free and clear of and without withholding or deduction for or on account of any present or future taxtaxes, dutylevies, levyduties, impostfees, assessment assessments or other governmental charge charges of whatever nature (including penalties, interest and other liabilities related theretopenalties) imposed (“Taxes”) imposed, levied, collected or levied assessed by or on behalf of the (1) any taxing authority within any jurisdiction, other than the United States, Germany, Luxembourg, the United Kingdom in which a Guarantor is organized or engaged in business (or any political subdivision or governmental taxing authority thereof or therein having the power to tax, of any such jurisdiction) (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant a Guarantor or other applicable withholding agent is required by the Taxing Jurisdiction to withhold or deduct Taxes by under its law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuerthereof.
(b) Subject to Section 4.22 (c) below, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or if a Guarantor is so required to withhold or deduct or if a Guarantor is otherwise required to pay any amount for or on account of Taxes from imposed by a Taxing Jurisdiction which amount would otherwise be included in any payment made under or with respect to the Notes or any Note Guarantee, then such Guarantor will (i) make such withholding or deduction and (ii) remit the Issuer full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law, and each holder of a Note (or the beneficial owner of, or person ultimately entitled to obtain an interest in, such Guarantor, as the case may be, will be required to pay Note) shall receive such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so that the net amount actually received (including Additional Amounts) received by each holder after such any additional withholding or deduction (including any withholding or deduction on in respect thereof) by each such Additional Amounts) person will not be less than the amount such holder person would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder deducted or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments paid. The Company or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain from the relevant Taxing Jurisdiction certified copies of tax receipts evidencing the payment by the Issuer or to such Guarantor (as applicable) Taxing Jurisdiction of any Taxes so withheld or deducted or paid. The Company or a Guarantor will furnish to a Holder of a Note (or the beneficial owner of, or person ultimately entitled to obtain an interest in, such Note), within 60 days after the date the payment of any Tax so withheld from each Relevant or deducted is due pursuant to applicable law, either a certified copy of tax receipts evidencing such payment by a Guarantor or, if such receipts are not obtainable, other evidence of such payment by a Guarantor.
(c) No Additional Amounts will be paid to a Holder of a Note (or the beneficial owner of, or person ultimately entitled to obtain an interest in, such Note) with respect to any Tax which (i) would have not been imposed, payable or due but for the existence of any present or former connection between such person and the Taxing Jurisdiction imposing other than the mere holding of such Note, or (ii) is imposed or withheld by reason of the failure of such person to comply with certification, information or other requirements concerning such person if such compliance is required or imposed by a statute, treaty or regulation or administrative practice of the Taxing Jurisdiction as a precondition to exemption from all or part of such Tax.
(d) If a Guarantor fails to withhold or deduct or pay any amount required to be withheld or deducted or paid under Section 4.22(b) above, then provided that reasonable supporting documentation is submitted by such person to the Company or such Guarantor, the Company and each Guarantor will, upon written request of a holder of a Note (or the beneficial owner of, or person ultimately entitled to obtain an interest in, such Note), pay to such person an amount necessary for such person to receive (after any additional withholding or deduction in respect thereof) the amount of any Taxes which such Guarantor failed to withhold or deduct or pay, but which were directly paid by such person to the relevant Taxing Jurisdiction. Additionally, if a Guarantor is not required to withhold or deduct or pay any Taxes under Section 4.22(b) above, but a Holder of a Note (or the beneficial owner of, or person ultimately entitled to obtain an interest in, such Note) is required under the law of the applicable Taxing Jurisdiction to directly pay any Taxes (e.g., Self-Assessed Withholding Taxes for Canadian federal tax purposes), then subject to Section 4.22(c) above and provided that reasonable supporting documentation is submitted by such person to the Company or such Guarantor, the Company and each Guarantor will, upon written request of such person, reimburse such person an amount necessary for such person to receive (after any additional withholding or deduction in respect thereof) the amount of any Taxes which such Guarantor was not required to withhold or deduct or pay, but which were directly paid by such person to the relevant Taxing Jurisdiction. Any amount due to a Holder of a Note (or the beneficial owner of, or person ultimately entitled to obtain an interest in, such Note) under this Section 4.22(d) shall be considered an Additional Amount.
(e) All obligations of each Guarantor to pay any Additional Amounts as described above in Section 4.22(b) are hereby fully and unconditionally guaranteed on an unsecured senior subordinated basis by the Company. The obligations of the Company described in this Section 4.22 (including without limitation those described in the immediately preceding sentence) shall be jointly and severally guaranteed by each Guarantor pursuant to the Note Guarantee.
(f) At least 30 days prior to each date on which any payment under or with respect to a Note Guarantee is due and payable, if a Guarantor will be obligated to pay Additional Amounts with respect to such payment, then the Company will deliver to the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and will provide set forth such certified copies other information necessary to enable the Trustee to pay such Additional Amounts to the TrusteeHolder of a Note (or the beneficial owner of, or person ultimately entitled to obtain an interest in, such Note) on the payment date. Wherever Whenever in the Indenture, this Note or any Note Guarantee Indenture there are is mentioned, in any context, (1) the payment of principalamounts based upon the principal of, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Notepremium, (3) if any, interest or (4) of any other amount payable on under or with respect to this Note or any Note Guarantee, such reference mention shall be deemed to include mention of the payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal.
(g) In addition, premiumthe Company will pay any stamp, if anyissue, interest registration, documentary, value added or other amounts on this Note is to be made similar taxes or duties (unless an obligation to pay Additional Amounts arises shortly before including interest and penalties) due and payable in the United States or after the 30th day prior to Canada (or any political subdivision or taxing authority of such datejurisdiction), in which case it shall be promptly thereafter)respect of the creation, if issue, offering, or execution of the Issuer or a Guarantor will be obligated to pay Additional Amounts Notes, the Note Guarantees, and any documentation with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) theretoforegoing.
Appears in 1 contract
Sources: Indenture (Intertape Woven Products Services S.A. De C.V.)
Additional Amounts. All payments made under or This Section 6.5 shall replace Section 1010 of the Base Indenture with respect to this Note under the Indenture or pursuant to any Note Guarantee must Notes only.
(a) Payments made by each Subsidiary Guarantor and each Future Guarantor that is a Foreign Subsidiary, if any, in respect of their respective Guarantees shall be made free and clear of of, and without deduction or withholding or deduction for or on account of for, any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant such Subsidiary Guarantor or other applicable withholding agent Future Guarantor, as applicable, is required to deduct or withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuerapplicable law.
(b) If, a pursuant to Section 6.5(a), any Subsidiary Guarantor or other any Future Guarantor that is a Foreign Subsidiary is required by applicable withholding agent making a payment on behalf of the Issuer law to deduct or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note its Guarantee, the Issuer such Subsidiary Guarantor or such Guarantor, as the case may be, will be required to Future Guarantor shall pay such amount (such amount the “Additional Amounts”) additional amounts as may be necessary so that the net amount (including Additional Amounts) received sum payable by each holder such Subsidiary Guarantor or Future Guarantor is increased as necessary so that, after such deduction or withholding has been made, each Holder or deduction (including any withholding or deduction on such Additional Amounts) will not be less than beneficial owner of the Notes receives an amount such holder equal to the sum it would have received if had no such Taxes had not deduction or withholding been withheld or deductedmade (“Additional Amounts”); provided, however, provided that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to Taxes:
(i1) any that are imposed as a result of the Holder or beneficial owner of the Notes being organized under the laws of, or having its principal office in, the jurisdiction imposing such Tax imposed on interest by the United States (or any political subdivision thereof);
(2) that are imposed as a result of a present or governmental authority thereof former connection between the Holder or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock Notes and the jurisdiction imposing such Tax;
(3) payable other than by withholding from payments in respect of the Issuer Guarantee of such Subsidiary Guarantor or Future Guarantor;
(4) that would not have been imposed but for the failure of the applicable recipient of such payment to comply with any certification, identification, information, documentation or other reporting requirement to the extent:
(A) such compliance is required by applicable law or administrative practice or an applicable treaty as a precondition to exemption from, or reduction in, the rate of deduction or withholding of such Taxes; and
(B) at least 30 days before the first payment date with respect to which such Additional Amounts or Taxes shall be payable, such Subsidiary Guarantor entitled or Future Guarantor has notified such recipient in writing that such recipient is required to vote, comply with such requirement;
(ii5) any Tax that are imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) withheld pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) ), as of the issue date of the Notes (or any amended or successor version of such sections), any regulations promulgated thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the Issuer foregoing or any Guarantor, agreements entered into pursuant to Section 1471(b)(1) of the Code; or
(iii6) any Tax imposed on interest by combination of the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant foregoing subsections 6.5(b)(1) to a loan agreement entered into 6.5(b)(5). All references in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant Indenture to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principalprincipal of, and premium, if any, and interest on, the Notes (2and similar phrases) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference payment made by any Subsidiary Guarantor or any Future Guarantor that is a Foreign Subsidiary under its Guarantee shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such that context, Additional Amounts are, were or would be payable payable. Notwithstanding anything to the contrary in respect thereof. At least 30 days prior to each date on which payment of principalthe Indenture, premiumin no event shall the Issuer, the Parent Guarantors, or any Future Guarantor that is a Domestic Subsidiary be obligated, directly or indirectly, for Additional Amounts, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) thereto.
Appears in 1 contract
Sources: Second Supplemental Indenture (Americold Realty Trust)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any Guarantor (each a “Payor”) under or with respect to this Note under the Indenture Notes or pursuant to any Note Guarantee must will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent such Payor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencythereof. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor Payor is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of any jurisdiction in which such Payor is organized, resident or carrying on business for tax purposes or from or through which such Payor makes any payment on the Notes or any Note Guarantee or any department or political subdivision thereof (each, a “Relevant Taxing Jurisdiction”) from any payment made under or with respect to the Notes or any Note Guarantee, such Payor, subject to the Issuer or such Guarantor, as the case may beexceptions stated below, will be required to pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so such that the net amount (including Additional Amounts) received in respect of such payment by each holder Holder or Beneficial Holder after such withholding or deduction (including any withholding or deduction attributable to Additional Amounts payable hereunder but excluding Taxes on such Additional Amountsnet income) will not be less than the amount such holder the Holder or Beneficial Holder, as the case may be, would have received if such Taxes had not been required to be so withheld or deducted; provided.
(b) A Payor will not, however, that no pay Additional Amounts will be payable to a Holder or Beneficial Holder with respect to:
(1) Canadian withholding Taxes imposed on a payment to payments made a Holder or Beneficial Holder with which the Payor does not deal at arm’s length for the purposes of the Tax Act at the time of making such payment (other than where the non-arm’s length relationship arises as a result of the exercise or enforcement of rights under any Notes or any Note Guarantee);
(2) a debt or other obligation to pay an amount to a person with whom the applicable Payor is not dealing at arm’s length within the meaning of the Tax Act (other than where the non-arm’s length relationship arises as a result of the exercise or enforcement of rights under any holder Notes or any Note Guarantee);
(3) any Canadian withholding Taxes imposed on a payment or deemed payment to the extent such Taxes are imposed a Holder or Beneficial Holder by reason of such Holder or Beneficial Holder being a “specified shareholder” of the Issuer (iwithin the meaning of subsection 18(5) of the Tax Act) at the time of payment or deemed payment, or by reason of such holder Holder or beneficial owner being considered Beneficial Holder not dealing at arm’s length for the purposes of the Tax Act with a “specified shareholder” of the Issuer at the time of payment or deemed payment (other than where the Holder or Beneficial Holder is a “specified shareholder,” or does not deal at arm’s length with a “specified shareholder,” as a result of the exercise or enforcement of rights under any Notes or any Note Guarantee);
(4) Taxes giving rise to be or to such Additional Amounts that would not have been connected with imposed but for the existence of any present or former connection between such Holder (or the Beneficial Holder of, or person ultimately entitled to obtain an interest in, such Notes, including a fiduciary, settler, beneficiary, member, partner, shareholder or other equity interest owner of, or possessor of power over, such Holder or Beneficial Holder, if such Holder or Beneficial Holder is an estate, trust, partnership, limited liability company, corporation or other entity) and the Relevant Taxing JurisdictionJurisdiction (including being a citizen or resident or national of, other than by or carrying on a business or maintaining a permanent establishment in, the Relevant Taxing Jurisdiction but not including any connection resulting solely from the acquisition, ownership, holding or disposition of this NoteNotes, the receipt of payments thereunder and/or the exercise or enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note Notes or any Note Guarantee);
(5) Taxes giving rise to such Additional Amounts that would not have been imposed but for the failure of such Holder or Beneficial Holder, to the extent such Holder or (ii) such holder or beneficial owner not completing any procedural formalities that it Beneficial Holder is legally eligible to complete and are necessary for the Issuerdo so, Guarantors to timely satisfy any certification, identification, information, documentation or other applicable reporting requirements concerning such Holder’s or Beneficial Holder’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction or arm’s length relationship with the Payor or otherwise establish the right to the benefit of an exemption from, or reduction in the rate of, withholding agent or deduction, if such compliance is required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction as a precondition to make exemption from, or obtain authorization to make payments without reduction in the rate of deduction or withholding of, such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior to a certification that the receipt of any payment on Holder or Beneficial Holder is not resident in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another the Relevant Taxing Jurisdiction). Further;
(6) any estate, no Additional Amounts shall be payable inheritance, gift, sales, transfer, personal property, excise or any similar Taxes or assessment;
(7) any Taxes that were imposed with respect to any payment on a Note to any Holder who is a fiduciary or partnership or person other than the sole beneficial owner of such payment and to the extent the Taxes giving rise to such Additional Amounts would not have been imposed on such payment had the Holder been the beneficiary, partner or sole beneficial owner, as the case may be, of such Note;
(i8) Taxes imposed on, or deducted or withheld from, payments in respect of the Notes if such payments could have been made without such imposition, deduction or withholding of such Taxes had such Notes been presented for payment (where presentation is required) within 30 days after the date on which such payments or such Notes became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent such Holder or Beneficial Holder would have been entitled to such Additional Amounts had such Notes been presented on the last day of such 30 day period);
(9) any Tax imposed on interest which is payable otherwise than by the United States deduction or any political subdivision withholding from payments made under or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer Notes or any Guarantor, Note Guarantee;
(iii10) any Tax Taxes that are imposed on interest by or withheld as a result of the United States or any political subdivision or governmental authority thereof or therein by reason presentation of any beneficial owner being Note for payment by or on behalf of a bank extending credit pursuant Holder or Beneficial Holder who would have been able to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make avoid such withholding or deduction and remit the full amount deducted or withheld to by presenting the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor Note to another paying agent;
(as applicable11) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to imposed under FATCA; or
(12) any combination of the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, foregoing subclauses (1) the payment of principal, through (211).
(c) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 calendar days prior to each date on which any payment of principal, premiumunder or with respect to the Notes or any Note Guarantee is due and payable, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor Payor will be obligated to pay Additional Amounts with respect to any such paymentpayment (unless such obligation to pay Additional Amounts arises after the 35th day prior to the date on which such payment is due and payable, in which case it will be promptly thereafter), the Issuer Payor will promptly furnish deliver to the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders and/or Beneficial Holders on the payment date. .
(d) The Issuer will indemnify and hold harmless the Holders and Beneficial Holders of the Notes for the amount of any Taxes under Regulation 803 of the Tax Act, or any similar or successor provisions (other than Taxes described in subclauses (1) through (12) above (but including, notwithstanding subclause (9), any Taxes payable pursuant to Regulation 803 of the Tax Act) or Taxes arising by reason of a Guarantor transfer of the Note to a person resident in Canada with whom the transferor does not deal at arm’s length for the purposes of the Tax Act except where such non-arm’s length relationship arises as a result of the exercise or enforcement of rights under any Notes or any Note Guarantee) levied or imposed on and paid by such a Holder or Beneficial Holder as a result of payments made under or with respect to the Notes or any Note Guarantee.
(as applicablee) In addition, the Payor will pay to any stamp, issue, registration, court, documentation, excise or other similar taxes, charges and duties, including any interest, penalties and any similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction at any time in respect of the Trustee execution, issuance, registration, delivery or enforcement of the Paying Agent such Additional Amounts and, if paid to Notes (other than on or in connection with a Paying Agent transfer of the Notes other than the Trusteeinitial sale by an Initial Purchaser), shall promptly provide the Trustee with documentation evidencing the payment of any Note Guarantee or any other document or instrument referred to thereunder and any such Additional Amounts. Copies of such documentation shall be taxes, charges or duties imposed by any Relevant Taxing Jurisdiction on any payments made available pursuant to the holders upon request. Notes or any Note Guarantee and/or any other such document or instrument (limited, solely in the case of taxes, charges or duties attributable to any payments with respect thereto, to any such taxes, charges or duties imposed in a Relevant Taxing Jurisdiction that are not excluded under Sections 4.21(b)(5) through (8) and (10) and (11)).
(f) The foregoing obligations in under this Paragraph 2 Section 4.21 will survive any termination, defeasance or discharge of the Indenture. References this Indenture and will apply mutatis mutandis to any successor Person to any Payor and to any jurisdiction in this Paragraph 2 to the Issuer which such successor is organized or is otherwise resident or doing business for tax purposes or any Guarantor shall apply jurisdiction from or through which payment is made by such successor or its respective agents. Whenever this Indenture refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any successor(s) theretoNote, such reference shall include the payment of Additional Amounts or indemnification payments as described hereunder, if applicable.
Appears in 1 contract
Additional Amounts. (a) All payments made that the Issuer makes under or with respect to this Note the Notes or that any Subsidiary Guarantor makes under the Indenture or pursuant with respect to any Note its Guarantee must shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of any jurisdiction in which the (1) the United States, Germany, LuxembourgIssuer, the United Kingdom Subsidiary Guarantor or any political subdivision Surviving Entity is incorporated, organized, engaged in business (where such Tax is imposed by reason of the Issuer, Subsidiary Guarantor, or governmental authority thereof Surviving Entity being engaged in business) or therein having the power to tax, (2) any jurisdiction otherwise resident for tax purposes or from or through which any of the foregoing makes any payment on the Notes or by or within any Note Guarantee is made, department or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the IssuerIssuer or such Subsidiary Guarantor, relevant Guarantor or other applicable withholding agent as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a any Subsidiary Guarantor is so required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note GuaranteeNotes, the Issuer or such Subsidiary Guarantor, as the case may be, will be required to pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount received by each holder of the Notes (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will be not be less than the amount such the holder would have received if such Taxes had not been required to be withheld or deducted; provided.
(b) Neither the Issuer nor any Subsidiary Guarantor will, however, that no pay Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such a holder or beneficial owner being considered of Notes in respect or on account of:
(i) any Taxes that are imposed or levied by a Relevant Taxing Jurisdiction by reason of a present or former connection of a holder (or a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such holder, if the holder is an estate, a trust, a partnership or a corporation) or a beneficial owner with such Relevant Taxing Jurisdiction (other than the mere receipt or holding of Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under any Notes or the Indenture);
(ii) any Taxes that are imposed or levied by reason of the failure of the holder or beneficial owner of Notes, following the Issuer’s written request addressed to be the holder (and made at a time which would enable the holder or beneficial owner acting reasonably to have been connected comply with that request), to comply with any certification, identification, information or other reporting requirements which the holder or such beneficial owner is legally required to satisfy, whether imposed by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, other than as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes Relevant Taxing Jurisdiction (including, without limitation, providing prior to a certification that the receipt of any payment on holder or beneficial owner is not resident in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another the Relevant Taxing Jurisdiction). Further;
(iii) any estate, no Additional Amounts shall be inheritance, gift, sales, transfer, personal property or similar Taxes;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes;
(iv) any Tax that is imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of such Notes for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficial owner or holder thereof would have been entitled to Additional Amounts had the Notes been presented for payment on any date during such 30 day period;
(vi) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such any Subsidiary Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in holder if such holder is a fiduciary or partnership or person other than the Indenture, this Note or any Note Guarantee there are mentioned, in any context, sole beneficial owner of such payment to the extent that Taxes would not have been imposed on such payment had such holder been the sole beneficial owner of such Note;
(1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4vii) any other amount payable Tax that is imposed on or with respect to this Note a payment made to a holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union;
(viii) any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were withholding or would be payable deduction in respect thereof. At least 30 days prior of any Taxes where such withholding or deduction is imposed on a payment to each date on which payment of principal, premium, if any, interest or other amounts on this Note an individual and is required to be made (unless an obligation pursuant to pay Additional Amounts arises shortly before European Council Directive 2003/48/EC or after any other Directive implementing the 30th day prior to such dateconclusions of the ECOFIN Council meeting of November 26–27, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders 2000 on the payment date. The Issuer taxation of savings income or a Guarantor any law implementing or complying with, or introduced in order to conform to, such Directive; or
(as applicableix) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge combination of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) theretoabove.
Appears in 1 contract
Additional Amounts. (a) All payments made that the Issuers make under or with respect to this Note the Notes or that the Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments by or on behalf of the any jurisdiction (1) other than the United States, Germanyany state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, Luxembourgresident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the United Kingdom Paying Agent) makes any payment on this Note or by or within any department, political subdivision or governmental authority thereof of or therein in any of the foregoing having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant such Issuer or Guarantor or other applicable withholding agent agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the either Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes this Note or any Note Guarantee, the such Issuer or such Guarantor, as the case may be, will be required to shall pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder beneficial owner of the Notes, after such withholding or deduction (including any withholding or deduction on such in respect of any Additional Amounts) will not be less than the amount such holder the beneficial owner would have received if such Taxes had not been withheld or deducted; provided.
(b) None of the Issuers or Guarantors will, however, that no pay Additional Amounts will be payable with in respect to payments made to or on account of:
(i) any holder Taxes, to the extent such Taxes are imposed or levied by a Relevant Taxing Jurisdiction by reason of (i) such holder the Holder’s or beneficial owner being considered to be owner’s present or to have been connected former connection with a such Relevant Taxing Jurisdiction, Jurisdiction (other than by the acquisitionmere receipt, ownership, holding or disposition of this Note, or by reason of the receipt of any payments in respect of any Notes or any Guarantee, or the exercise or enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note Notes or any Note Guarantee, or );
(ii) any Taxes to the extent such Taxes are imposed or withheld by reason of the failure of the Holder or beneficial owner of this Note, following the Issuers’ written request addressed to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements (to the extent such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for do so), whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the Issuerrate of deduction or withholding of, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(iii) any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to Guarantee;
(iv) any Tax imposed on interest or with respect to any payment by any of the United States Issuers or any political subdivision Guarantors to the Holder if such Holder is a fiduciary or governmental authority thereof partnership or therein by reason of any Person other than the sole beneficial owner holding or owning, actually or constructively, 10% or more of such payment to the total combined voting power extent that such Taxes would not have been imposed on such payment had such beneficial owner been the holder of all classes of stock of the Issuer or any Guarantor entitled to vote, such Note;
(iivi) any Tax that is imposed on interest or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union or the United States Kingdom;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had this Note been presented on the last day of such 30-day period);
(viii) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 as of the August 2019 Issue Date (or any political subdivision amended or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation successor version that is a related person within the meaning of substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 864(d)(41471(b)(1) of the Internal Revenue Code of 1986, 1986 as amended of the August 2019 Issue Date (the “Code”) with respect to the Issuer or any Guarantoramended or successor version described above), and including (iiifor the avoidance of doubt) any Tax imposed on interest by intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or foregoing; or
(ivix) any United States federal tax imposed pursuant to FATCAcombination of the foregoing.
(c) The Issuers and the Guarantors, if the applicable withholding agents, shall (vi) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or .
(d) At least 30 calendar days prior to each date on which any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note Guarantee is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer Issuers or a any Guarantor will shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to this Note or any such paymentGuarantee is due and payable, in which case it will be promptly thereafter), the Issuer will promptly furnish Issuers shall deliver to the Trustee and Trustee, with a copy to the Paying Agent, if other than the Trustee, with an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set setting forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 of the Indenture stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (i) the execution, issue, delivery or registration of this Note or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, this Note or any Guarantee. Upon written request, any of the Issuers or a Guarantor (as applicable) will pay furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or such Guarantor (as the Paying Agent case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02 of the Indenture, in such Additional Amounts andform as provided in the normal course by the taxing authority imposing such Taxes. If, if paid notwithstanding the efforts of such Issuer or Guarantor to a Paying Agent obtain such receipts, the same are not obtainable, such Issuer or such Guarantor will provide the Trustee or such Holder with other than evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, shall promptly the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee with documentation evidencing such information as may be reasonably available to such Issuers and the Guarantors (and not otherwise in the possession of the Trustee) to enable the determination of the amount of any withholding taxes attributable to any particular Holder(s).
(e) Whenever the Indenture or this Note refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to this or any other Note (including payments thereof made pursuant to a Guarantee), such reference includes the payment of Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph , if applicable.
(f) This paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References Indenture and shall apply mutatis mutandis to any jurisdiction (other than the United States, any state thereof or the District of Columbia) in this Paragraph 2 which any successor Person to any of the Issuer Issuers or Guarantors is organized, resident or doing business for tax purposes or any Guarantor shall apply jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on this or any other Note (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to any successor(s) theretotax.
Appears in 1 contract
Sources: Indenture (Ardagh Group S.A.)
Additional Amounts. (a) All payments made that the Issuers make under or with respect to this Note the Notes or that the Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments by or on behalf of the any jurisdiction (1) other than the United States, Germanyany state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, Luxembourgresident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the United Kingdom Paying Agent) makes any payment on the Notes or by or within any department, political subdivision or governmental authority thereof of or therein in any of the foregoing having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant such Issuer or Guarantor or other applicable withholding agent agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the an Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note Guarantee, the such Issuer or such Guarantor, as the case may be, will be required to shall pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder beneficial owner of the Notes after such withholding or deduction (including any withholding or deduction on such in respect of any Additional Amounts) will not be less than the amount such holder the beneficial owner would have received if such Taxes had not been withheld or deducted; provided.
(b) None of the Issuers or Guarantors shall, however, that no pay Additional Amounts will be payable with in respect to payments made to or on account of:
(i) any holder Taxes, to the extent such Taxes are imposed or levied by a Relevant Taxing Jurisdiction by reason of (i) such holder the Holder’s or beneficial owner being considered to be owner’s present or to have been connected former connection with a such Relevant Taxing Jurisdiction, Jurisdiction (other than by the acquisitionmere receipt, ownership, holding or disposition of this Notethe Notes, or by reason of the receipt of any payments in respect of any Notes or any Guarantee, or the exercise or enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note Notes or any Note Guarantee, or );
(ii) any Taxes to the extent such Taxes are imposed or withheld by reason of the failure of the Holder or beneficial owner of the Notes, following the Issuers’ written request addressed to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements (to the extent such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for do so), whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the Issuerrate of deduction or withholding of, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior to a certification that the receipt of any payment on Holder or beneficial owner is not resident in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another the Relevant Taxing Jurisdiction). Further;
(iii) any estate, no Additional Amounts shall be inheritance, gift, sales, transfer, personal property or similar Taxes;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes or any Guarantee;
(iv) any Tax imposed on interest or with respect to any payment by any of the United States Issuers or any political subdivision Guarantors to the Holder if such Holder is a fiduciary or governmental authority thereof partnership or therein by reason of any Person other than the sole beneficial owner holding or owning, actually or constructively, 10% or more of such payment to the total combined voting power extent that such Taxes would not have been imposed on such payment had such beneficial owner been the holder of all classes of stock of the Issuer or any Guarantor entitled to vote, such Note;
(iivi) any Tax that is imposed on interest or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the United States relevant Notes to another paying agent in a member state of the European Union;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period);
(viii) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the European Council Directive 2003/48/EC, European Council Directive 2014/107/EU or any political subdivision other Directive implementing the conclusions of the ECOFIN Council meetings of November 26 and 27, 2000 on the taxation of savings income or governmental authority any law implementing or complying with, or introduced in order to conform to, any such Directive;
(ix) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 as of the Issue Date (or therein by reason of any beneficial owner being a controlled foreign corporation amended or successor version that is a related person within the meaning of substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 864(d)(41471(b)(1) of the Internal Revenue Code of 1986, 1986 as amended of the Issue Date (the “Code”) with respect to the Issuer or any Guarantoramended or successor version described above), and including (iiifor the avoidance of doubt) any Tax imposed on interest by intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or foregoing; or
(ivx) any United States federal tax imposed pursuant to FATCAcombination of the foregoing.
(c) The Issuers and the Guarantors, if the applicable withholding agent, shall (vi) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor .
(as applicabled) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 calendar days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on this Note with respect to the Notes or any Guarantee is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer Issuers or a any Guarantor will shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or any such paymentGuarantee is due and payable, in which case it will be promptly thereafter), the Issuer will promptly furnish Issuers shall deliver to the Trustee and Trustee, with a copy to the Paying Agent, if other than the Trustee, with an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set setting forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including, without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (i) the execution, issue, delivery or registration of the Notes or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, the Notes or any Guarantee. Upon written request, any of the Issuers or a Guarantor (as applicable) will pay furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or Guarantor (as the Paying Agent case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02, in such Additional Amounts andform as provided in the normal course by the taxing authority imposing such Taxes. If, if paid notwithstanding the efforts of such Issuer or Guarantor to a Paying Agent obtain such receipts, the same are not obtainable, such Issuer or Guarantor will provide the Trustee or such Holder with other than evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, shall promptly the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee with documentation evidencing such information as may be reasonably available to such Issuer and the Guarantors (and not otherwise in the possession of the Trustee) to enable determination of the amount of any withholding Taxes attributable to any particular Holder(s).
(e) Whenever this Indenture or the Notes refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note (including payments thereof made pursuant to a Guarantee), such reference includes the payment of Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 , if applicable.
(f) This Section 4.12 will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction (other than the Indenture. References United States, any state thereof or the District of Columbia) in this Paragraph 2 which any successor Person to any of the Issuer Issuers or Guarantors is organized, resident or doing business for tax purposes or any Guarantor shall apply jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on the Notes (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to any successor(s) theretotax.
Appears in 1 contract
Additional Amounts. All payments made by the Company or any Guarantor under or with respect to this Note under the Indenture Notes or pursuant to any Note Guarantee must will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Company or a Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencythereof. If the Issuer, a Company or any Guarantor (or any other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor agent) is so required to withhold or deduct any amount for for, or on account of, any Taxes imposed or levied by or on behalf of Taxes (a) the government of Canada or any province or territory thereof, (b) any jurisdiction in which the Company or any Guarantor is incorporated, organized, resident or doing business for tax purposes or (c) any jurisdiction from or through which any payment is made by or on behalf of the Company or any Guarantor (including the jurisdiction of any Paying Agent) or, in each case, a political subdivision thereof or therein (each of (a), (b) and (c) a “Relevant Taxing Jurisdiction”) in respect of any payment made under or with respect to the Notes or any Note Guarantee, (a) the Issuer Company, the Guarantor or the applicable withholding agent will make such Guarantorwithholding or deduction, as (b) the case may beCompany, the Guarantor or the applicable withholding agent will be remit the full amount deducted or withheld to the relevant government authority in accordance with and in the time required to under applicable law and (c) the Company or the applicable Guarantor will pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each holder beneficial owner of Notes after such withholding or deduction (including any deduction or withholding or deduction on such in respect of Additional Amounts) will not be less than equal the amount such holder beneficial owner would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to to:
(1) any holder Taxes, to the extent such Taxes are would not have been imposed by reason but for the existence of any present or former connection between the Holder or beneficial owner of Notes and the Relevant Taxing Jurisdiction (i) including such holder Holder or beneficial owner being considered to be a citizen or to have been connected with resident or national of, or carrying on a business or maintaining a permanent establishment in, the Relevant Taxing Jurisdiction, ) other than by a connection arising solely from the acquisition, ownership, holding or disposition of this such Note, the enforcement of rights under this such Note or under any Note Guarantee Guarantee, or the receipt of payments in respect of this such Note or any Note Guarantee;
(2) any Taxes, to the extent such Taxes are imposed or (ii) withheld by reason of the Holder’s or beneficial owner’s failure to satisfy any certification, identification or other reporting requirements, whether imposed by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, which are necessary to enable the Company or a Guarantor to make payments on the Notes without deduction or withholding for Taxes; provided, however, that the Company has delivered a written request to such holder Holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without comply with such Taxes (including, without limitation, providing requirements at least 30 days prior to the receipt date by which such compliance is required and such Holder or beneficial owner can legally comply with such requirements;
(3) any Taxes, to the extent such Taxes would not have been imposed if the presentation of a Note (where presentation is required) for payment had occurred within 30 days after the date such payment was due and payable or was duly provided for, whichever is later, but only to the extent such Additional Amounts would not have been required had the Note been presented on the last day of the applicable 30 day period;
(4) any payment Taxes that are imposed on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to any payment made to any Holder who is a fiduciary or partnership or other person that is not the sole beneficial owner of such payment, to the extent that a beneficiary or settlor (ifor tax purposes) with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of the applicable Note;
(5) any Tax Canadian Taxes, to the extent such Taxes would not have been imposed on interest by but for the United States fact that the Holder or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, does not deal at arm’s length (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4the Income Tax Act (Canada)) of with the Internal Revenue Code of 1986Company or a Guarantor;
(6) any estate, as amended inheritance, gift, sales, transfer or similar Tax;
(the “Code”7) any Taxes that are payable other than by deduction or withholding from payments under or with respect to the Issuer Notes or any GuarantorGuarantee;
(8) any Taxes imposed pursuant to Sections 1471 through 1474 of the Code, (iii) any Tax imposed on interest by current or future regulations or official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents the foregoing or any Tax withheld agreements entered into pursuant to Section 1471(b)(1) of the Code;
(9) any combination of the items (1) through (8) above. Each of the Company and the Guarantors will, jointly and severally, indemnify and hold harmless each Holder and beneficial owner of Notes for (x) any Taxes levied by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing (other than Taxes excluded by clauses (1) through (9) above) and paid by each such Holder or beneficial owner as a result of payments made under or with respect to such Notes or Guarantee, and (y) any Taxes (other than Taxes excluded by clauses (1) through (9) above) so levied or imposed with respect to any indemnification payments under the foregoing clause (x) or this clause (y) such that the net amount received by such Holder or beneficial owner after such indemnification payments will not be less than the net amount the Holder or beneficial owner would have received if the Taxes described in clauses (x) and will provide such certified copies to the Trustee(y) above had not been imposed. Wherever Whenever there is mentioned in the this Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, premium (2) purchase prices in connection with a purchase of Notes under the Indenture or this Noteif any), (3) Redemption Price, interest or (4) of any other amount payable on under or with respect to this Note the Notes or any Note Guarantee, such reference mention shall be deemed to include mention of the payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 The Company or the relevant Guarantor will provide to the Trustee (or to a Holder or beneficial owner upon written request), within 60 days prior to each after the date on which the payment of principalany Taxes giving rise to Additional Amounts is due, premiumreceipts or, if anyreceipts are not available, interest other documentation reasonably satisfactory to the Trustee evidencing payment by the Company or such Guarantor of such Taxes. The Company and the Guarantors will pay any present or future stamp, issue, registration, court or documentary Taxes, or any other amounts on excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance or registration or enforcement of the Notes, this Note is Indenture, any Guarantee or any other document or instrument referred to be made (unless an obligation to pay Additional Amounts arises shortly before therein, or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer receipt of any payments under or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer Notes or any Guarantor shall apply to any successor(s) theretoGuarantee (“Documentary Taxes”).
Appears in 1 contract
Additional Amounts. (a) All payments made that the Issuers make under or with respect to this Note the Notes or that the Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments by or on behalf of the any jurisdiction (1) other than the United States, Germanyany state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, Luxembourgresident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the United Kingdom Paying Agent) makes any payment on the Notes or by or within any department, political subdivision or governmental authority thereof of or therein in any of the foregoing having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant such Issuer or Guarantor or other applicable withholding agent agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the either Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note Guarantee, the such Issuer or such Guarantor, as the case may be, will be required to shall pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder beneficial owner of the Notes after such withholding or deduction (including any withholding or deduction on such in respect of any Additional Amounts) will not be less than the amount such holder the beneficial owner would have received if such Taxes had not been withheld or deducted; provided.
(b) None of the Issuers or Guarantors shall, however, that no pay Additional Amounts will be payable with in respect to payments made to or on account of:
(i) any holder Taxes, to the extent such Taxes are imposed or levied by a Relevant Taxing Jurisdiction by reason of (i) such holder the Holder’s or beneficial owner being considered to be owner’s present or to have been connected former connection with a such Relevant Taxing Jurisdiction, Jurisdiction (other than by the acquisitionmere receipt, ownership, holding or disposition of this Notethe Notes, or by reason of the receipt of any payments in respect of any Notes or any Guarantee, or the exercise or enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note Notes or any Note Guarantee, or );
(ii) any Taxes to the extent such Taxes are imposed or withheld by reason of the failure of the Holder or beneficial owner of the Notes, following the Issuers’ written request addressed to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements (to the extent such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for do so), whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the Issuerrate of deduction or withholding of, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior to a certification that the receipt of any payment on Holder or beneficial owner is not resident in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another the Relevant Taxing Jurisdiction). Further;
(iii) any estate, no Additional Amounts shall be inheritance, gift, sales, transfer, personal property or similar Taxes;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes or any Guarantee;
(iv) any Tax imposed on interest or with respect to any payment by any of the United States Issuers or any political subdivision Guarantors to the Holder if such Holder is a fiduciary or governmental authority thereof partnership or therein by reason of any Person other than the sole beneficial owner holding or owning, actually or constructively, 10% or more of such payment to the total combined voting power extent that such Taxes would not have been imposed on such payment had such beneficial owner been the holder of all classes of stock of the Issuer or any Guarantor entitled to vote, such Note;
(iivi) any Tax that is imposed on interest or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the United States relevant Notes to another paying agent in a member state of the European Union;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period);
(viii) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 as of the Issue Date (or any political subdivision amended or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation successor version that is a related person within the meaning of Section 864(d)(4substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or other official administrative interpretations thereof and any agreements entered into pursuant to current Section
(1) of the Internal Revenue Code of 1986, 1986 as amended of the Issue Date (the “Code”) with respect to the Issuer or any Guarantoramended or successor version described above), and including (iiifor the avoidance of doubt) any Tax imposed on interest by intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or foregoing; or
(ivix) any United States federal tax imposed pursuant to FATCAcombination of the foregoing.
(c) The Issuers and the Guarantors, if the applicable withholding agents, shall (vi) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor .
(as applicabled) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 calendar days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on this Note with respect to the Notes or any Guarantee is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer Issuers or a any Guarantor will shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or any such paymentGuarantee is due and payable, in which case it will be promptly thereafter), the Issuer will promptly furnish Issuers shall deliver to the Trustee and Trustee, with a copy to the Paying Agent, if other than the Trustee, with an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set setting forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including, without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (i) the execution, issue, delivery or registration of the Notes or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, the Notes or any Guarantee. Upon written request, any of the Issuers or a Guarantor (as applicable) will pay furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or Guarantor (as the Paying Agent case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02, in such Additional Amounts andform as provided in the normal course by the taxing authority imposing such Taxes. If, if paid notwithstanding the efforts of such Issuer or Guarantor to a Paying Agent obtain such receipts, the same are not obtainable, such Issuer or Guarantor will provide the Trustee or such Holder with other than evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, shall promptly the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee with documentation evidencing such information as may be reasonably available to such Issuer and the Guarantors (and not otherwise in the possession of the Trustee) to enable determination of the amount of any withholding Taxes attributable to any particular Holder(s).
(e) Whenever this Indenture or the Notes refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note (including payments thereof made pursuant to a Guarantee), such reference includes the payment of Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 , if applicable.
(f) This Section 4.12 will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction (other than the Indenture. References United States, any state thereof or the District of Columbia) in this Paragraph 2 which any successor Person to any of the Issuer Issuers or Guarantors is organized, resident or doing business for tax purposes or any Guarantor shall apply to jurisdiction from or through which any successor(s) thereto.such person (or
Appears in 1 contract
Sources: Indenture (Ardagh Group S.A.)
Additional Amounts. (a) All payments made that the Issuers make under or with respect to this Note the Notes or that the Guarantors make under or with respect to the Indenture or pursuant to any Note Guarantee must Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments by or on behalf of the any jurisdiction (1) other than the United States, Germanyany state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, Luxembourgresident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the United Kingdom Paying Agent) makes any payment on the Notes or by or within any department, political subdivision or governmental authority thereof of or therein in any of the foregoing having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each each, a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant such Issuer or Guarantor or other applicable withholding agent agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyof law. If the either Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note Guarantee, the such Issuer or such Guarantor, as the case may be, will be required to shall pay such amount additional amounts (such amount the “Additional Amounts”) as may be necessary so to ensure that the net amount (including Additional Amounts) received by each holder beneficial owner of the Notes after such withholding or deduction (including any withholding or deduction on such in respect of any Additional Amounts) will not be less than the amount such holder the beneficial owner would have received if such Taxes had not been withheld or deducted; provided.
(b) None of the Issuers or Guarantors shall, however, that no pay Additional Amounts will be payable with in respect to payments made to or on account of:
(i) any holder Taxes, to the extent such Taxes are imposed or levied by a Relevant Taxing Jurisdiction by reason of (i) such holder the Holder’s or beneficial owner being considered to be owner’s present or to have been connected former connection with a such Relevant Taxing Jurisdiction, Jurisdiction (other than by the acquisitionmere receipt, ownership, holding or disposition of this Notethe Notes, or by reason of the receipt of any payments in respect of any Notes or any Guarantee, or the exercise or enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note Notes or any Note Guarantee, or );
(ii) any Taxes to the extent such Taxes are imposed or withheld by reason of the failure of the Holder or beneficial owner of the Notes, following the Issuers’ written request addressed to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements (to the extent such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for do so), whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the Issuerrate of deduction or withholding of, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, providing prior to a certification that the receipt of any payment on Holder or beneficial owner is not resident in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another the Relevant Taxing Jurisdiction). Further;
(iii) any estate, no Additional Amounts shall be inheritance, gift, sales, transfer, personal property or similar Taxes;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes or any Guarantee;
(iv) any Tax imposed on interest or with respect to any payment by any of the United States Issuers or any political subdivision Guarantors to the Holder if such Holder is a fiduciary or governmental authority thereof partnership or therein by reason of any Person other than the sole beneficial owner holding or owning, actually or constructively, 10% or more of such payment to the total combined voting power extent that such Taxes would not have been imposed on such payment had such beneficial owner been the holder of all classes of stock of the Issuer or any Guarantor entitled to vote, such Note;
(iivi) any Tax that is imposed on interest or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union or the United States Kingdom;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period);
(viii) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 as of the August 2019 Issue Date (or any political subdivision amended or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation successor version that is a related person within the meaning of substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 864(d)(41471(b)(1) of the Internal Revenue Code of 1986, 1986 as amended of the August 2019 Issue Date (the “Code”) with respect to the Issuer or any Guarantoramended or successor version described above), and including (iiifor the avoidance of doubt) any Tax imposed on interest by intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or foregoing; or
(ivix) any United States federal tax imposed pursuant to FATCAcombination of the foregoing.
(c) The Issuers and the Guarantors, if the applicable withholding agents, shall (vi) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor .
(as applicabled) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Note, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 calendar days prior to each date on which any payment of principal, premium, if any, interest under or other amounts on this Note with respect to the Notes or any Guarantee is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter)due and payable, if the Issuer Issuers or a any Guarantor will shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or any such paymentGuarantee is due and payable, in which case it will be promptly thereafter), the Issuer will promptly furnish Issuers shall deliver to the Trustee and Trustee, with a copy to the Paying Agent, if other than the Trustee, with an Officers’ Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, payable and will set setting forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders Holders on the payment date. The Issuer Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including, without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (i) the execution, issue, delivery or registration of the Notes or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, the Notes or any Guarantee. Upon written request, any of the Issuers or a Guarantor (as applicable) will pay furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or Guarantor (as the case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with Paying Agent the procedures described in Section 12.02, in such Additional Amounts andform as provided in the normal course by the taxing authority imposing such Taxes. If, if paid notwithstanding the efforts of such Issuer or Guarantor to a Paying Agent obtain such receipts, the same are not obtainable, such Issuer or Guarantor will provide the Trustee or such Holder with other than evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, shall promptly the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee with documentation evidencing such information as may be reasonably available to such Issuer and the Guarantors (and not otherwise in the possession of the Trustee) to enable determination of the amount of any withholding Taxes attributable to any particular Holder(s).
(e) Whenever this Indenture or the Notes refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note (including payments thereof made pursuant to a Guarantee), such reference includes the payment of Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 , if applicable.
(f) This Section 4.12 will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction (other than the Indenture. References United States, any state thereof or the District of Columbia) in this Paragraph 2 which any successor Person to any of the Issuer Issuers or Guarantors is organized, resident or doing business for tax purposes or any Guarantor shall apply jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on the Notes (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to any successor(s) theretotax.
Appears in 1 contract
Sources: Indenture (Ardagh Group S.A.)
Additional Amounts. All payments made under or with respect to this Note the Notes under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, ,” unless the Issuer, relevant Issuer or any Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agencyagency provided, however, that in determining what withholding is required by law for U.S. federal income and withholding tax purposes, the Issuer and any Guarantor shall be entitled to treat any payments on or in respect of the Notes as if the Notes were issued by a U.S. person as defined in section 7701(a)(30) of the Code. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a any Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note GuaranteeNotes, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the — “Additional Amounts”) ” — as may be necessary so that the net amount (including Additional Amounts) received by each holder Holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder Holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder Holder or beneficial owner to the extent such Taxes are imposed by reason of (i) such holder its being or beneficial owner being considered to be or to have having been connected with a the Relevant Taxing JurisdictionJurisdiction or any political subdivision or governmental authority thereof or therein having the power to tax, other otherwise than by the acquisition, ownership, holding holding, disposition or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee the Notes or the receipt of payments in respect of this Note or any Note Guaranteethereunder, or (ii) such holder Holder or beneficial owner not cooperating with the Issuer or the Guarantors in completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Issuer or the Guarantors or other applicable withholding agent to make pay or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this a Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments attachments); provided, however, that for purposes of this obligation to pay Additional Amounts, the Issuer and any Guarantor shall be entitled, for U.S. federal income and withholding tax purposes, to treat any payments on or in respect of the Notes as if the Notes were issued by a comparable form required by another Relevant Taxing Jurisdiction)U.S. person as defined in section 7701(a)(30) of the Code. Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein on interest by reason of any Holder or beneficial owner holding or owning, actually or constructively, 10% 10 percent or more of the total combined voting power of all classes of stock of the Issuer or any B-3 Guarantor entitled to vote, vote or (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein on interest by reason of any Holder or beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or will furnish to the Trustee, within 30 days after the date the payment of any Guarantor (as applicable) will use commercially reasonable efforts to obtain Taxes is due under applicable law, certified copies of tax receipts evidencing the such payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the TrusteeIssuer. Wherever in the Indenture, this Note Indenture or any Note Guarantee the Notes there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or this Notethe Notes, (3) interest or (4) any other amount payable on or with respect to this Note or any Note Guaranteeof the Notes, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. At least 30 days prior to each date on which payment of principalThe Issuer will pay any present stamp, premiumcourt or documentary taxes, if anyor any other excise, property or similar taxes, charges or levies (including any penalties, interest or other amounts on this Note liabilities related thereto) which arise in Luxembourg (or any political subdivision thereof or therein) from the execution, delivery and registration of Notes upon original issuance and initial resale of the Notes or any other document or instrument referred to therein. If at any time the Issuer changes its place of organization to outside of Luxembourg or there is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such datea new issuer organized outside of Luxembourg, in which case it shall be promptly thereafter), if the Issuer or a Guarantor new issuer, as applicable, will be obligated pay any stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in the jurisdiction in which the Issuer or new issuer is organized (or any political subdivision thereof or therein) and are payable by the Holders of the Notes in respect of the Notes or any other document or instrument referred to pay Additional Amounts with respect to therein under any law, rule or regulation in effect at the time of such change, or in connection with, the enforcement of the Notes or any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee document or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon requestinstrument. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 section (“Additional Amounts”) to the Issuer or any Guarantor shall apply to any successor(s) thereto.
Appears in 1 contract
Additional Amounts. All In accordance with the Indenture, all payments made under or with respect by the Book-Entry Depositary pursuant to this Note under the Indenture or pursuant to any Note Guarantee must Agreement shall be made free and clear of and without deduction or withholding or deduction for for, or on account of of, any present or future taxtaxes, dutyduties, levyassessments or governmental charges of whatever nature (collectively, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto"United Kingdom Taxes") imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or any authority therein or thereof having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”"U.K. Tax Authority"), collectively, “Taxes”, unless the Issuerwithholding or deduction of such United Kingdom Taxes is then required by law. At least 10 days prior to the first interest payment date, relevant Guarantor and at least 10 days prior to each succeeding interest payment date if there has been any change with respect to the matters set forth in the below-mentioned Directors' Certificate, the Company will furnish the Book-Entry Depositary with a Directors' Certificate instructing the Book-Entry Depositary whether such payment of principal of or other applicable withholding agent is required interest on such Book-Entry Interest shall be made to withhold the Institutional Trustee or deduct Taxes by law or by following the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent making a payment on behalf dissolution of the Issuer Trust to the Depositary without deduction or a Guarantor is so required to withhold or deduct any amount withholding for or on account of Taxes from any United Kingdom Taxes. If any such deduction or withholding shall be required, prior to such interest payment made under or date the Company will furnish the Book-Entry Depositary with respect to a Directors' Certificate which specifies the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be amount required to pay such amount (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each holder after such withholding deducted or deduction (including any withholding or deduction withheld on such Additional Amounts) payment. Neither the Company nor any agent of the Company will not be less than the amount such holder would have received if such Taxes had not been withheld any responsibility or deducted; provided, however, that no Additional Amounts will be payable with respect liability for any aspect relating to payments made or to any holder be made by the Book-Entry Depositary to the extent such Taxes are imposed by reason Institutional Trustee or following the dissolution of (i) such holder or beneficial owner being considered the Trust to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments Depositary in respect of this Note the Subordinated Debentures, CDIs or the Book-Entry Interests. None of the Company, the Indenture Trustee, the Book-Entry Depositary or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power foregoing will have any responsibility or liability for any aspect relating to payments made or to be made by DTC on account of all classes a Participant's or Indirect Participant's ownership of stock of an interest in the Issuer Book-Entry Interests or CDIs or for maintaining, supervising or reviewing any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant records relating to a loan agreement entered into Participant's or Indirect Participant's interests in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodianBook-Entry Interests. The Issuer Company shall indemnify the Book-Entry Depositary, its officers, directors and employees for, and hold it harmless against, any loss, liability or any Guarantor (as applicable) required to withhold any Taxes will make such withholding expense reasonably incurred without negligence, willful misconduct or deduction and remit the full amount deducted bad faith on its part arising out of or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Indenture, this Note or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture actions taken or this Note, (3) interest or (4) omitted by it in reliance on any other amount payable on or with respect Directors' Certificate furnished to it pursuant to this Note Section 2.12 including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were its powers or would be payable in respect thereof. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment dateduties hereunder. The Issuer or a Guarantor (as applicable) will pay to indemnity provided by the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations Company in this Paragraph 2 will Section 2.12 shall survive any termination, defeasance or the satisfaction and discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) theretoAgreement.
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Sources: Deposit Agreement (Southern Investments Uk Capital Trust I)