Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made under or with respect to its Guarantee 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 government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”), such Guarantor shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders (including Additional Amounts) after such withholding or deduction shall not be less than the amount the Holders would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to (a) 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, 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 of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if 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 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 that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder 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 of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Warner Chilcott CORP)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is (a) All payments required by applicable law or to be made by the interpretation or administration thereof to withhold or deduct any amount from any payment made Issuers under or with respect to its the Notes or by any Guarantor under or with respect to a Guarantee (each of the Issuers or such Guarantor and, in each case, any successor thereof, making such payment, the “Payor”), will be made free and clear of, and without withholding or deduction for or on account of, any taxes (which term, for purposes of any present or future taxthis Section 2.15, duty, levy, impost, assessment or also includes other governmental charge (including penaltiescharges or, interest in each case, any related penalties and other liabilities related thereto) (hereinafter “Taxes”interest) imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor any Payor is incorporated, organized or otherwise resident for tax purposes purposes, or engaged in business for tax purposes, or any jurisdiction from or through which payment under its Guarantee is made by or on behalf of such Payor, or in each case any political subdivision or taxing authority or agency thereof or therein (each a “Relevant Taxing Jurisdiction”), unless such Guarantor shall Payor is required to withhold or deduct such taxes by law or regulation.
(b) If a Payor is so required to withhold or deduct any amount for or on account of taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or a Guarantee, as applicable, such Payor will be required to pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders any Holder (including Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders Holder or beneficial owner would have received if such Taxes taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to to:
(a1) any Taxes taxes that would not have been (or would not be required to be) so imposed imposed, withheld, deducted or levied but for the existence of any present or former connection between the relevant Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over over, the relevant HolderHolder or beneficial owner, if the relevant Holder or beneficial owner is an estate, nominee, trust trust, partnership, company or corporation) and the Relevant Taxing Jurisdiction Jurisdiction, including, without limitation, such Holder or beneficial owner being or having been a citizen, domiciliary, national or resident thereof, or being or having been present or engaged in a trade or business therein or having or having had a permanent establishment therein (other than any connection arising solely from the mere receipt of such payment or the ownership acquisition or holding of any Note, the Notes outside receipt of any payments in respect of such Note or Guarantee or the jurisdiction exercise or enforcement of organization rights under such Note or incorporation of the GuarantorGuarantee); or ;
(b2) any estate, inheritance, gift, sales, excise, transfer, personal property or similar tax or similar tax, assessment assessment;
(3) any taxes which are payable other than by withholding or governmental charge; nor shall such Guarantor deduction from payments made under or with respect to the Notes or any Guarantee;
(4) any taxes that would not have been (or would not be required to pay Additional Amounts be) imposed, withheld, deducted or levied if such Holder or the beneficial owner of any Note or interest therein complied with all reasonable written requests by the Payor (1made to the Holder at a time that would enable the Holder or beneficial owner acting reasonably to comply with such request) to provide timely and accurate information or documentation concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner, if such compliance is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of withholding or deduction of, all or part of such taxes;
(5) any taxes imposed or withheld on or with respect to a payment which could have been made without such deduction or withholding if the beneficiary of the payment had presented the Notes Note for payment (where presentation is required) within 30 days after the date on which such payment or such Notes 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 or beneficial owner would have been entitled to Additional Amounts had the Notes Note been presented on any day during the last day of such 30-day period), ;
(6) any taxes imposed on or (2) with respect to any payment of principal of (made under or premium, if any, on) with respect to such Note or interest on such Notes Guarantee to any Holder who is a fiduciary or partnership or any person 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 of such Note;
(7) any taxes payable under Sections 1471-1474 of the Code, as of the Issue Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any regulations or official interpretations thereof, any intergovernmental agreement entered into in connection therewith 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;
(8) any taxes imposed by the United States or any political subdivision thereof; or
(9) any taxes imposed or levied by reason of any combination of clauses (1) through (8) above.
(c) The Issuers and the Guarantors (as the case may be) will pay any present or future stamp, issue, registration, excise, property, court or documentary taxes, or similar taxes, charges or levies (referred to in this Section 2.15 as “stamp taxes”) and interest, penalties and other reasonable expenses related thereto that arise in or are levied by any Relevant Taxing Jurisdiction on the execution, issuance, delivery, enforcement or registration of the Notes, this Indenture, the Guarantees or any other document or instrument in relation thereto (other than on a transfer or assignment of the Notes after the Issue Date) except for stamp taxes due as a result of registration or other action by the Holder of the Notes where such registration or action is not necessary to maintain, preserve, establish, enforce, perfect or protect the rights of the Holder of Notes.
(d) The Payor will make or cause to be made any withholding or deduction required in respect of taxes, and remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction, in accordance with applicable law. Upon request, the Issuer shall provide Payor will provide, within a reasonable time after the date the payment of any such taxes so deducted or withheld is made, the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes taxes so deducted or withheld.
(e) If any Payor will be obligated to pay Additional Amounts under or with respect to which any payment made on the Notes or the Guarantees, the Payor will deliver to the Paying Agent with a copy to the Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts are paidarises after the 45th day prior to that payment date, in which case the Payor shall notify the Paying Agent and the Trustee promptly thereafter) a certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable and such other information reasonably necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date. The Payor shall also deliver a form of Additional Amounts notice that can be delivered to the registered Holders.
(f) Whenever in this Indenture there is mentioned, in any context:
(1) the payment of principal;
(2) the payment of interest; or
(3) any other amount payable on or with respect to any of the Notes, such reference will be deemed to include payment of Additional Amounts as described under this Section 2.15 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(g) The obligations described under this Section shall 2.15 will survive any termination, defeasance or discharge of this Indenture or any Guarantee and shall will apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer Payor is incorporated, organized or otherwise resident for tax purposes, or engaged in business for tax purposes, or any jurisdiction from or through which payment is made by or on behalf of such successor Person, or in each case any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Venator Materials PLC)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary (a) All payments or is a Puerto Rican corporation is required deliveries (whether upon conversion, repurchase, redemption, maturity or otherwise, and whether in cash, Common Shares, Reference Property or otherwise) made by applicable law or by on behalf of the interpretation or administration thereof to withhold or deduct any amount from any payment made Company under or with respect to its Guarantee the Notes 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) (hereinafter referred to as “Taxes”) imposed or levied by or on behalf of the government of the jurisdiction Canada, any province or territory of organization or incorporation of such Guarantor Canada or any political subdivision or any authority or agency therein or thereof having power to taxtax (each, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”), unless such Guarantor Person is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(b) If the Company is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment or delivery made under or with respect to the Notes, the Company shall be required to pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders a Holder or beneficial owner of Notes (including Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders such Holder or 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 the foregoing obligation obligations to pay Additional Amounts does do not apply to:
(i) any Canadian withholding Taxes imposed on a payment to a Holder or beneficial owner of Notes (aor the right to receive interest payable on the Notes) by reason of the Company not dealing at arm’s length (within the meaning of the Tax Act (Canada)) with such Holder or beneficial owner of Notes (or the right to receive interest payable on the Notes) at the time of the payment;
(ii) any Canadian withholding Taxes imposed on a payment to a Holder or beneficial owner of Notes by reason of such Holder or beneficial owner being a “specified shareholder” of the Company (as defined in subsection 18(5) of the Tax Act (Canada)) or by reason of such Holder or beneficial owner not dealing at arm’s length with a specified shareholder of the Company in either case at the time of payment;
(iii) any Canadian withholding Taxes imposed on a payment to a Holder, former Holder or beneficial owner of Notes by reason of such Holder’s, former Holder’s or beneficial owner’s failure to comply with any certification, identification, information, documentation or other reporting requirement if compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to exemption from, or a reduction in the rate of deduction or withholding of, such Taxes (provided that in the case of any imposition or change in any such certification, identification, information, documentation or other reporting requirement which applies to Holders, former Holders or beneficial owners of Notes who are not residents of Canada, at least sixty (60) days prior to the effective date of any such imposition or change, the Company shall give written notice, in the manner provided for in this Indenture, to the Trustee and the applicable Holders of Notes then outstanding of such imposition or change, as the case may be, and provide the Trustee and such Holders with such forms or documentation, if any, as may be required to comply with such certification, identification, information, documentation, or other reporting requirement);
(iv) 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 beneficial owner of Notes and the Relevant Taxing Jurisdiction including, for greater certainty and without limitation, being or having been a fiduciarycitizen, settlor, beneficiary, member resident or shareholder ofnational thereof, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust being or corporation) and having been present or 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 receipt of such payment or the acquisition, ownership or holding of such Note or a beneficial interest therein or the Notes outside enforcement of rights thereunder or the jurisdiction receipt of organization or incorporation of the Guarantorany payment in respect thereof); or or
(bv) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required , (any Taxes imposed by a Relevant Taxing Jurisdiction that are not excluded pursuant to pay Additional Amounts (1) if the payment could have been made without such deduction or withholding if the beneficiary any of the payment had presented above clauses are referred to as “Indemnified Taxes”).
(c) The Company shall make any required withholding or deduction and remit the Notes for payment within 30 days after the date on which such payment full amount deducted or such Notes became due and payable or the date on which payment thereof is duly provided for, whichever is later (except withheld to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2) Relevant Taxing Jurisdiction in accordance with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder 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 of such Notesapplicable law. Upon request, the Issuer Company shall provide the Trustee on behalf of Holders and beneficial owners of Notes (and the Trustee shall forthwith provide Holders and beneficial owners of Notes) with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. .
(d) If the Company is or will become obligated to pay Additional Amounts under or with respect to any payment or delivery made on the Notes, at least 30 days prior to the date of such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to such date, in which case it shall be promptly thereafter), the Company shall deliver to the Trustee and the Paying Agent (if other than 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 or beneficial owners on the relevant payment date.
(e) Whenever in this Indenture there is mentioned in any context: (i) the payment of principal; (ii) Redemption Price in connection with an Optional Redemption or Tax Redemption of Notes; (iii) Fundamental Change Repurchase Price in connection with a repurchase of Notes upon a Fundamental Change; (iv) interest; or (v) any other amount payable on or with respect to any of the Notes (including amounts payable on conversion), such reference shall be deemed to include payment of Additional Amounts provided for in this Section 2.11 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The Company shall indemnify and hold harmless a Holder or beneficial owner of the Notes for the amount of any Indemnified Taxes payable pursuant to Regulation 803 of the Income Tax Regulations (Canada) levied or imposed and paid by such Holder or beneficial owner as a result of payments made under or with respect to the Notes, any liability (including penalties, interest, additions to tax and expenses) arising therefrom or with respect thereto, and any such Indemnified Taxes levied or imposed and paid by such Holder or beneficial owner of the Notes with respect to any reimbursement under this paragraph.
(g) The Company 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, 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 and the Company shall indemnify the Holders and beneficial owners of Notes for any such amounts (including penalties, interest and other liabilities related thereto) paid by such Holders or beneficial owners.
(h) The obligations described under in this Section shall 2.11 will survive any termination, defeasance termination or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or thereinIndenture.
Appears in 1 contract
Sources: Indenture (Aurora Cannabis Inc)
Additional Amounts. If All amounts paid or credited by the Company under or with respect to the Notes, or by any Guarantor pursuant to its Note Guarantee, will be made free and clear of and without withholding or deduction for or on account of any Taxes imposed or levied by or on behalf of a Taxing Jurisdiction, unless the Company or any Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount Taxes from any payment made under or with respect to its Guarantee the Notes or by the interpretation or administration thereof. If, after the date on which Notes are first issued and authenticated under this Indenture, the Company or any Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any present payment made under or future taxwith respect to the Notes, duty, levy, impost, assessment the Company or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or such Guarantor will pay to each Holder of Notes that are outstanding on behalf the date of the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to taxrequired payment, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”), such Guarantor shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders such holder (including the Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders such Holder would have received if such Taxes had not been withheld or deducted; provided, however, provided that the foregoing obligation to pay no Additional Amounts will be payable with respect to a payment made to a Holder of the Notes (each of the following, an “Excluded Holder”):
(1) with whom the Company does not apply to deal at arm’s length (awithin the meaning of the Income Tax Act (Canada)) any at the time of making such payment or credit;
(2) on which such Taxes that would not have been so imposed but for because of the existence of any present or former connection between the relevant Holder holder or beneficial owner (or between a fiduciary, settlorsettler, beneficiary, or member or shareholder of, or possessor of power over over, the relevant Holderholder or beneficial owner, if the relevant Holder holder or beneficial owner is an estate, nominee, trust trust, or corporationpartnership) and the Relevant Taxing Jurisdiction (other than the mere receipt of such payment or the ownership or holding of such note), including without limitation such holder or beneficial owner being a resident, domiciliary or national of, or engaged in business or maintaining a permanent establishment in, the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or Taxing Jurisdiction;
(b3) any on which such estate, inheritance, gift, sales, excise, transfer, personal property tax or similar taxtax have been imposed;
(4) on which such Taxes are imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of a note with a request by the Company addressed to the Holder or such beneficial owner (i) to provide information concerning the nationality, assessment residence, identity, entitlement to treaty benefits or governmental chargepresent or former connection with a Taxing Jurisdiction of the Holder or such treaty benefits or present or former connection with a Taxing Jurisdiction of the holder or such beneficial owner or (ii) to make any declaration or other similar claim or satisfy any certification, information or reporting requirement, which, in the case of (i) or (ii), is required or imposed by a statue, treaty, regulation or administrative practice of the Taxing Jurisdiction as a precondition to exemption from all or part of such Taxes;
(5) which failed to duly and timely comply with a timely request by the Company to provide information, documents, certification or other evidence concerning such Holder’s nationality, residence, entitlement to treaty benefits, identity or connection with a Taxing Jurisdiction or any political subdivision or authority thereof, if and to the extent that due and timely compliance with such request could have resulted in the reduction or elimination of any Taxes as to which Additional Amounts would otherwise have been payable to such Holder of Notes but for this clause (5);
(6) which is a fiduciary, a partnership or not the beneficial owner of any payment on a note, if and to the extent that any beneficiary or settlor of such fiduciary, any partner of 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 such payment if such beneficiary, settlor, partner or beneficial owner had been the holder of such note; or
(7) any combination of the foregoing clauses (1) through (6). Neither the Company nor shall such a Guarantor will be required to pay Additional Amounts (1) if the payment could have been made without such deduction or withholding if if, when presentation is required, the beneficiary of the payment had presented the Notes Note for payment within 30 days after the date on which such payment or such Notes 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 such beneficiary would have been entitled to Additional Amounts had the Notes Note been presented on the last day of such the 30-day period). The Company and the Guarantors will also:
(1) make such withholding or deduction, or and
(2) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company and the Guarantors will furnish to the Trustee, or cause to be furnished to 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 that such payment has been made by the Company or any such Guarantor or other evidence of such payment satisfactory to the Trustee. The trustee shall make such evidence available upon the written request of any Holder of the Notes that are outstanding on the date of any such withholding or deduction. The Company and the 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:
(1) any Taxes so levied or imposed by or on behalf of a Taxing Jurisdiction and actually 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
(2) any Taxes (other than Taxes on such Holder’s profits or net income) imposed with respect to any reimbursement under clause (1) above 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 imposed. 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 such Guarantor becomes obligated to pay Additional Amounts with respect to such payment, the Company or such 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 of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context:
(1) the payment of principal of (or and premium, if any, on);
(2) purchase prices in connection with a repurchase of Notes;
(3) interest; or
(4) any other amount payable on or interest on such Notes with respect to any Holder who is a fiduciary or partnership or any person other than of the sole beneficial owner Notes, such mention shall be deemed to include mention of such payment, the payment of Additional Amounts provided for in this section to the extent that a beneficiary or settlor with respect to that, in such fiduciarycontext, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiaryare, settlor, member were or beneficial owner been the actual Holder of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with would be payable in respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or thereinthereof.
Appears in 1 contract
Additional Amounts. If a Guarantor that is a Foreign Subsidiary (a) All payments or is a Puerto Rican corporation is required deliveries (whether upon conversion (together with payments of cash in lieu of fractional shares), repurchase, redemption, maturity or otherwise, and whether in cash, Common Shares, Reference Property or otherwise) made by applicable law or by on behalf of the interpretation Company or administration thereof to withhold or deduct any amount from any payment made successor under or with respect to its Guarantee the Notes 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) (hereinafter referred to as “Taxes”) imposed or levied by or on behalf of the government of the jurisdiction Canada, any province or territory of organization or incorporation of such Guarantor Canada or any political subdivision or any authority or agency therein or thereof having power to taxthereof, or within any other jurisdiction in which such Guarantor is the Company, or any successor following any consolidation, merger, amalgamation, combination or similar transaction involving the Company, are or are deemed to be organized or resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is payments or deliveries by or on behalf of the Company with respect to the notes are made or deemed made or by or within any political subdivision thereof or any authority or agency therein or thereof having power to tax (each each, a “Relevant Taxing Jurisdiction”), unless such Guarantor Person is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(b) If the Company is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment or delivery made under or with respect to the Notes, the Company shall be required to pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders a Holder or beneficial owner of Notes (including Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders such Holder or 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 the foregoing obligation obligations to pay Additional Amounts does do not apply to:
(i) any Canadian withholding Taxes imposed on a payment to a Holder or beneficial owner of Notes (aor the right to receive interest payable on the Notes) by reason of the Company not dealing at arm’s length (within the meaning of the Tax Act) with such Holder or beneficial owner of Notes (or the right to receive interest payable on the Notes) at the time of the payment;
(ii) any Canadian withholding Taxes imposed on a payment to a Holder or beneficial owner of Notes by reason of such Holder or beneficial owner being a “specified shareholder” of the Company (as defined in subsection 18(5) of the Tax Act) or by reason of such Holder or beneficial owner not dealing at arm’s length with a specified shareholder of the Company;
(iii) any Canadian withholding Taxes imposed on a payment to a Holder, former Holder or beneficial owner of Notes by reason of such Holder’s, former Holder’s or beneficial owner’s failure to comply with any certification, identification, information, documentation or other reporting requirement if compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to exemption from, or a reduction in the rate of deduction or withholding of, such Taxes (provided that in the case of any imposition or change in any such certification, identification, information, documentation or other reporting requirement which applies to Holders, former Holders or beneficial owners of Notes who are not residents of Canada, at least sixty (60) days prior to the effective date of any such imposition or change, the Company shall give written notice, in the manner provided for in this Indenture, to the Trustee and the applicable Holders then outstanding of such imposition or change, as the case may be, and provide the Trustee and such Holders with such forms or documentation, if any, as may be required to comply with such certification, identification, information, documentation, or other reporting requirement);
(iv) 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 beneficial owner of Notes and the Relevant Taxing Jurisdiction including, for greater certainty and without limitation, being or having been a fiduciarycitizen, settlor, beneficiary, member resident or shareholder ofnational thereof, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust being or corporation) and having been present or 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 receipt of such payment or the acquisition, ownership or holding of such Note or a beneficial interest therein or the Notes outside enforcement of rights thereunder or the jurisdiction receipt of organization or incorporation of the Guarantorany payment in respect thereof); or or
(bv) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required , (any Taxes imposed by a Relevant Taxing Jurisdiction that are not excluded pursuant to pay Additional Amounts (1) if the payment could have been made without such deduction or withholding if the beneficiary any of the payment had presented above clauses are referred to as “Indemnified Taxes”).
(c) The Company shall make any required withholding or deduction and remit the Notes for payment within 30 days after the date on which such payment full amount deducted or such Notes became due and payable or the date on which payment thereof is duly provided for, whichever is later (except withheld to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2) Relevant Taxing Jurisdiction in accordance with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder 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 of such Notesapplicable law. Upon request, the Issuer Company shall provide the Trustee on behalf of Holders and beneficial owners of Notes (and the Trustee shall forthwith provide Holders and beneficial owners of Notes) with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid.
(d) If the Company is or will become obligated to pay Additional Amounts under or with respect to any payment or delivery made on the Notes, at least 30 days prior to the date of such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to such date, in which case it shall be promptly thereafter), the Company shall deliver to the Trustee and the Paying Agent (if other than 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 or beneficial owners on the relevant payment date.
(e) Whenever in this Indenture there is mentioned in any context: (i) the payment of principal; (ii) Redemption Price in connection with an Optional Redemption or Tax Redemption of Notes; (iii) Fundamental Change Repurchase Price in connection with a repurchase of Notes upon a Fundamental Change; (iv) interest; or (v) any other amount payable on or with respect to any of the Notes (including amounts payable on conversion), such reference shall be deemed to include payment of Additional Amounts provided for in this Section 2.11 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The Company shall indemnify and hold harmless a Holder or beneficial owner of the Notes for the amount of any Indemnified Taxes payable pursuant to Regulation 803 of the Income Tax Regulations (Canada) levied or imposed and paid by such Holder or beneficial owner as a result of payments made under or with respect to the Notes, any liability (including penalties, interest, additions to tax and expenses) arising therefrom or with respect thereto, and any such Indemnified Taxes levied or imposed and paid by such Holder or beneficial owner of the Notes with respect to any reimbursement under this paragraph.
(g) The Company 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, 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 and the Company shall agree to indemnify the Holders and beneficial owners of Notes for any such amounts (including penalties, interest and other liabilities related thereto) paid by such Holders or beneficial owners. The obligations described under in this Section shall 2.11 will survive any termination, defeasance termination or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or thereinIndenture.
Appears in 1 contract
Sources: Indenture
Additional Amounts. If (a) All payments (including payments of interest and payments of any premium paid upon redemption of the Notes) by or on behalf of the Issuer or a Guarantor that is successor in respect of the Notes or the Guarantors or a Foreign Subsidiary successor in respect of the Note Guarantees will be made free and clear of, and without withholding or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made under or with respect to its Guarantee 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) (hereinafter “Taxes”) Taxes imposed or levied by or on behalf of Brazil, the government United States or any authority therein or thereof or any other jurisdiction in which the Issuer or the Guarantors (or in each case, their successor) are organized or doing business or from or through which payments are made in respect of the jurisdiction of organization or incorporation of such Guarantor Notes, or any political subdivision or taxing authority thereof or therein (any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each of the aforementioned being a “Relevant Taxing Jurisdiction”), unless the Issuer or the Guarantors (or their respective successor) are compelled by law to deduct or withhold such Guarantor shall Taxes. In such event, the Issuer or the Guarantors (or their respective successor) will make such deduction or withholding, make payment of the amount so withheld to the appropriate Governmental Authority and pay such additional amounts (“Additional Amounts”) as may be necessary so to ensure that the net amount amounts received by the registered Holders (including Additional Amounts) of Notes after such withholding or deduction shall not equal the respective amounts of principal and interest (or other amounts stated to be less than payable under the amount the Holders Notes) which would have been received if in respect of the Notes in the absence of such withholding or deduction (“additional amounts”). Notwithstanding the foregoing, no such additional amounts shall be payable:
(i) to, or to a third party on behalf of, a Holder or beneficial owner who is liable for such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to (a) any Taxes that would not have been so imposed but for in respect of such Note by reason of the existence of any present or former connection between the relevant such Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over the relevant such Holder, if the relevant such Holder is an estate, nomineea trust, trust a partnership, or a corporation) and the Relevant relevant Taxing Jurisdiction Jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein, other than the mere receipt of such payment or the ownership or holding of the Note or enforcement of rights under this Indenture and the receipt of payments with respect to the Notes;
(ii) in respect of Taxes that would not have been so withheld or deducted if the Notes outside had been surrendered or presented for payment (if surrender or presentment is required) not more than 30 days after the Relevant Date except to the extent that payments under such Note would have been subject to withholdings and the Holder or beneficial owner of such Note would have been entitled to such additional amounts, on surrender of such Note for payment on the jurisdiction last day of organization such period of 30 days;
(iii) to, or incorporation to a third party on behalf of, a Holder or beneficial owner who is liable for such Taxes by reason of such Holder or beneficial owner’s failure to comply, with any certification, identification, documentation or other reporting requirement concerning the Guarantor); nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder or beneficial owner, if (bA) compliance is required by law or an applicable income treaty as a precondition to, exemption from, or reduction in the rate of, the Tax and (B) the Issuer has given the Holders and beneficial owners at least 30 days’ notice that Holders and beneficial owners will be required to provide such certification, identification, documentation or other requirement;
(iv) in respect of any estate, inheritance, gift, sales, excise, transfer, excise or personal property tax or similar taxTax, assessment other than as provided in Section 4.17(a)(i);
(v) in respect of any Tax which is payable other than by deduction or governmental chargewithholding from payments of principal of (including premium) or interest on the Notes; nor or
(vi) in respect of any combination of the above.
(b) Notwithstanding anything to the contrary in this provision, none of the Issuer, the Guarantors, their respective successors, a paying agent or any other person shall such Guarantor be required to pay Additional Amounts (1) if 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 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 that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2) any additional amounts with respect to any payment in respect of principal any Taxes imposed under Sections 1471 through 1474 of (the Code, or premiumany successor law or regulation implementing or complying with, if anyor introduced in order to conform to, on) such sections, or interest on such Notes imposed pursuant to any intergovernmental agreement or any agreement entered into pursuant to section 1471(b)(1) of the Code.
(c) No additional amounts shall be paid with respect to any payment on a Note to a Holder or beneficial owner who is a fiduciary fiduciary, a partnership, an exempted limited partnership, a limited liability company or partnership or any person other than the sole beneficial owner of such payment, that payment to the extent that payment would be required by the relevant Taxing Jurisdiction to be included in the income, for Tax purposes, of a beneficiary or settlor with respect to such the fiduciary, a member of such that partnership, an interest holder in a partnership limited liability company or the a beneficial owner of such payment who would not have been entitled to the Additional Amounts additional amounts had such that beneficiary, settlor, member or beneficial owner been the actual Holder.
(d) Payments on the Notes are subject in all cases to any Tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above, neither the Issuer nor the Guarantors shall be required to pay additional amounts with respect to any Tax imposed by any government or a political subdivision or taxing authority thereof or therein.
(e) In the event that additional amounts actually paid with respect to the Notes are based on rates of deduction or withholding of withholding Taxes in excess of the appropriate rate applicable to the Holder or beneficial owner of such Notes. Upon request, and, as a result thereof such Holder or beneficial owner is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding Tax, then such Holder or beneficial owner, as applicable, shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess to the Issuer.
(f) Any reference in this Indenture or the Notes to principal, interest or any other amount payable in respect of the Notes by the Issuer or the Note Guarantee by the Guarantors (or their successors) will be deemed also to refer to any additional amount, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this provision.
(g) Each of the Obligors shall agree that if any of the Issuer or the Guarantors, as applicable, is required under applicable law to make any deduction or withholding on payments of principal of or interest on the Notes for or on account of any Tax, at least 10 days prior to the first payment date on the Notes and at least 10 days prior to each payment date thereafter where such withholding is required, the Issuer or the Guarantor, as applicable, shall provide furnish the Trustee and a paying agent with official an Officer’s Certificate (but only if there has been any change with respect to the matters set forth in any previously delivered Officer’s Certificate) instructing the Trustee and a paying agent as to whether such payment of principal of or interest on the Notes shall be made without deduction or withholding for or on account of any Tax, or, if any such deduction or withholding shall be required by the Taxing Jurisdiction, then such certificate shall (i) specify the amount required to be deducted or withheld on such payment to the relevant recipient, (ii) certify that the Issuer or the Guarantors, as applicable, shall pay such deduction or withholding amount to the appropriate taxing authority, and (iii) certify that the Issuer or the Guarantors, as applicable, shall pay or cause to be paid to the Trustee or a paying agent such additional amounts as are required by this provision.
(h) Each of the Obligors (or their respective successor) will pay any Taxes required to be deducted or withheld pursuant to applicable law and will furnish to the Holders, within 60 days after the date such payment is due, either certified copies of Tax receipts or evidencing such payment, or, if such receipts are not obtainable, other documentation evidence of such payments reasonably satisfactory to the Trustee evidencing Holders.
(i) The Issuer or the payment of the Guarantors, as applicable, will pay when due any present or future stamp, transfer, court or documentary Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive or any termination, defeasance other excise or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized property Taxes imposed by a Taxing Jurisdiction (or any political subdivision or taxing authority or agency Governmental Authority thereof or thereintherein having power to Tax) with respect to the initial execution, delivery or registration of the Notes or any other document or instrument relating thereto.
Appears in 1 contract
Sources: Indenture
Additional Amounts. If a Guarantor that is (a) All payments made by a Foreign Subsidiary Guarantor in respect of a Guarantee will be made free and clear of and without withholding or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made under or with respect to its Guarantee for deduction for, or on account of of, any present or future taxTaxes unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, dutyor on account of, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) any Taxes imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such the relevant Foreign Guarantor is then incorporated or organized or resident for tax purposes or purposes, any jurisdiction from or through which payment under its Guarantee on behalf of such Foreign Guarantor is made or any political subdivision or governmental authority thereof or therein having power to tax (each other than the United States) (each, a “Relevant Taxing Tax Jurisdiction”), such will at any time be required to be made from any payments made by or on behalf of the relevant Foreign Guarantor shall under its Guarantee, the relevant Foreign Guarantor will pay such additional amounts (the “Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by the Holders each Holder (including Additional Amounts) after such withholding or deduction shall not be less than will equal the amount the Holders 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 the foregoing obligation to pay no Additional Amounts does not apply to will be payable with respect to:
(ai) any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant Holder or the beneficial owner of the New Second Lien Secured Note or Guarantee (or between a fiduciary, settlorsettler, beneficiary, partner, member or shareholder of, or possessor of power over the relevant HolderHolder or beneficial owner, if the relevant Holder is an estate, nominee, trust trust, partnership, limited liability company, unlimited liability company or corporation) and the Relevant Taxing Jurisdiction (relevant Tax Jurisdiction, other than by the mere receipt of such payment or the ownership acquisition or holding of any New Second Lien Secured Note or the Notes outside enforcement or receipt of payment under or in respect of any New Second Lien Secured Note or Guarantee;
(ii) any Taxes imposed or withheld as a result of the jurisdiction of organization or incorporation failure of the Guarantor); Holder or (b) beneficial owner of any estateNew Second Lien Secured Note or Guarantee to comply with any written request, inheritancemade to that Holder or beneficial owner within a reasonable period before any such withholding or deduction would be payable, giftby the Company or a Foreign Guarantor to provide timely or accurate information concerning the nationality, sales, excise, transfer, personal property tax residence or identity of such Holder or beneficial owner or to make any valid or timely declaration or similar taxclaim or satisfy any certification information or other reporting requirements (in each case, assessment to the extent such Holder or governmental charge; nor shall such Guarantor be beneficial owner is legally eligible to do so), which is required or imposed by a statute, treaty, regulation or administrative practice of the relevant Tax Jurisdiction as a precondition to pay Additional Amounts (1) if exemption from, or reduction in the payment could have been made without such rate of deduction or withholding if the beneficiary of such Taxes;
(iii) any Taxes that are imposed or withheld as a result of the payment had presented the Notes presentation of any New Second Lien Secured Note or Guarantee for payment within 30 (where presentation is required) more than fifteen (15) days after the date on which such relevant payment is first made available for payment to the Holder or such Notes became due and payable or the date on which payment thereof is duly provided for, whichever is later beneficial owner (except to the extent that the Holder or beneficial owner would have been entitled to Additional Amounts had the Notes New Second Lien Secured Note been presented on the last day of such 30-fifteen (15) day period);
(iv) any estate, inheritance, gift, value added, sale, excise, transfer, personal property or similar tax or assessment;
(2v) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to any New Second Lien Secured Note or Guarantee;
(vi) any Tax imposed on or with respect to any payment of principal of (or premium, by a Foreign Guarantor to the Holder if any, on) or interest on such Notes to any Holder who is a fiduciary fiduciary, partnership, limited liability company, unlimited liability company or partnership or any person other than the sole beneficial owner of such payment, payment to the extent that a beneficiary or settlor with respect to Taxes would not have been imposed on such fiduciary, a member of payment had such a partnership or Holder been the sole beneficial owner of such New Second Lien Secured Note or Guarantee;
(vii) any Taxes that are imposed or withheld as a result of the presentation of any New Second Lien Secured Note or Guarantee for payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member by or on behalf of a Holder or beneficial owner been the actual Holder of such New Second Lien Secured Notes or Guarantee who would have been able to avoid such withholding or deduction by presenting the relevant New Second Lien Secured Note or Guarantee to, or otherwise accepting payment from, another paying agent;
(viii) any Taxes that are imposed or withheld pursuant to Sections 1471 through 1474 of the Code, 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 foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code; or
(ix) any combination of the provisions in Section 4.10(a)(i) through Section 4.10(a)(viii) above.
(b) The relevant Foreign Guarantor will pay when due any present or future stamp, transfer, court or documentary Taxes or any other excise or property Taxes that arise in a Tax Jurisdiction with respect to the initial execution, delivery or registration of the Guarantees or any other document or instrument relating thereto (other than the New Second Lien Secured Notes. Upon request).
(c) The relevant Foreign Guarantor will use reasonable efforts to furnish to the Holders, within a reasonable period of time after the Issuer shall provide due date for the Trustee with official payment of any Taxes so deducted or withheld pursuant to applicable law, either certified copies of tax receipts or evidencing such payment by such Foreign Guarantor (in such form as provided in the ordinary course by the relevant Tax Jurisdiction and as is reasonably available to the Foreign Guarantor), or, if such receipts are not obtainable, other documentation evidence of such payments by such Foreign Guarantor reasonably satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or thereinHolders.
Appears in 1 contract
Sources: Second Lien Indenture (Bed Bath & Beyond Canada L.P.)
Additional Amounts. If a Each of the Company and the Guarantor that is a Foreign Subsidiary will make all payments to the Initial Purchasers under this Agreement without set-off or is a Puerto Rican corporation is required by applicable law counterclaim, and free and clear of and without deduction or by the interpretation or administration thereof to withhold or deduct any amount from any payment made under or with respect to its Guarantee withholding for or on account of of, any present or future taxtaxes, dutylevies, levyimposts, impostduties, assessment fees, assessments or other charges of whatever nature imposed by Chile or by any governmental charge (including penalties, interest and agency or body or other liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any taxing authority thereof or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which a payment under its Guarantee is made or in which the Company (each a or any successor to the Company) or the Guarantor, as applicable, is organized or resident for tax purposes and all interest, penalties or similar liabilities with respect thereto (collectively, “Relevant Taxing JurisdictionTaxes”), unless the Company or the Guarantor, as applicable, is compelled by law to deduct or withhold such Guarantor Taxes. In that event, the Company or the Guarantor, as applicable, shall pay increase the amount paid so that, after taking into account all required deductions or withholding of such Taxes, each Initial Purchaser shall receive an amount equal to what would have been received in the absence of such deduction or withholding. No such additional amounts shall be payable in respect of (“Additional Amounts”i) as may be necessary so that the net amount received by the Holders (including Additional Amounts) after such withholding or deduction shall not be less than the amount the Holders would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to (a) any Taxes that which would not have been so imposed but for the existence of any present or former connection between the relevant Holder (Initial Purchasers and the jurisdiction imposing such Taxes, including being or between having been a fiduciaryresident thereof, settlor, beneficiary, member being or shareholder ofhaving been engaged in a trade or business therein, or possessor of power over the relevant Holderhaving or having had a permanent establishment therein, if the relevant Holder is an estate, nominee, trust or corporation) and the Relevant Taxing Jurisdiction (other than the mere holding of Securities or the receipt of payment thereon or (ii) Taxes imposed due to the failure of such payment Initial Purchaser or its agent, as the case may be, to comply with a reasonable request of the Company or the ownership Guarantor, as applicable, to provide any form, certificate, document, or holding of other information concerning the Notes outside of nationality, residence, identity, or connection with the jurisdiction imposing such Taxes if compliance is required as a precondition to the reduction or elimination of organization such Taxes and the Company has notified the Initial Purchaser in writing of such certification, identification or incorporation other reporting requirements at least 15 days before the applicable payment date (for the avoidance of doubt, provided that such request shall not require an Initial Purchaser or its agent, as the Guarantor); case may be, to provide any materially more onerous information, documents or (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor other evidence than would be required had it been required to pay Additional Amounts (1) if the payment could have been made without such deduction file U.S. IRS Form W-8BEN, W-8BEN-E or withholding if the beneficiary of the payment had presented the Notes for payment within 30 days after the date on which such payment 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 that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day periodW-9), or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder 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 of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Purchase Agreement
Additional Amounts. If a Guarantor (a) All payments that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made Issuers make under or with respect to its Guarantee the Notes or that the Guarantors make under or with respect to the 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 (hereinafter collectively, “Taxes”) imposed or levied on such payments by or on behalf of any jurisdiction (other than the government United States, any state thereof or the District of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction Columbia) in which such any Issuer or Guarantor is incorporated or resident or doing business for tax purposes or any jurisdiction from or through which any of the foregoing makes any payment under its Guarantee is made on the Notes or by or within any department or political subdivision or governmental authority of or in any of the foregoing having power to tax (each each, a “Relevant Taxing Jurisdiction”), unless such Issuer or 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 of law. If an Issuer, Guarantor or other applicable withholding agent is 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 Guarantee, such Issuer or Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as may be necessary so to ensure that the net amount received by each beneficial owner of the Holders (including Additional Amounts) Notes after such withholding or deduction shall (including any withholding or deduction in respect of any Additional Amounts) will not be less than the amount the Holders 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 the foregoing obligation to pay Additional Amounts does not apply to in respect or on account of:
(ai) any Taxes, to the extent such Taxes that would not have been so are imposed but for or levied by a Relevant Taxing Jurisdiction by reason of the existence of any Holder’s or beneficial owner’s 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 with such Relevant Taxing Jurisdiction (other than the mere receipt, ownership, holding or disposition of the Notes, or by reason of the receipt of such payment any payments in respect of any Note or any Guarantee, or the ownership exercise or holding enforcement of rights under any Notes or any Guarantee);
(ii) any Taxes to the extent such Taxes are imposed or withheld by reason of the Notes outside failure of the jurisdiction of organization Holder or incorporation beneficial owner of the GuarantorNotes, 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 is legally eligible to 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 rate of deduction or withholding of, such Taxes imposed by the Relevant Taxing Jurisdiction (bincluding, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(iii) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts Taxes;
(1iv) if the payment could have been made without such any Tax which is payable otherwise than by deduction or withholding if from payments made under or with respect to the beneficiary Notes or any Guarantee;
(v) any Tax imposed on or with respect to any payment by any of the Issuers or Guarantors 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 presented such beneficial owner been the holder of such Note;
(vi) 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 presenting the 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 within (where presentation is required) more than 30 days after the date on which such relevant payment or such Notes became due and payable or is first made available to the date on which payment thereof is duly provided for, whichever is later Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Notes 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 Directive implementing the conclusions of the ECOFIN Council meetings of November 26 and 27, 2000 on the taxation of savings income or 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 any amended or successor version that is 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 1471(b)(1) of the Internal Revenue Code of 1986 as of the Issue Date (or any amended or successor version described above), and including (for the avoidance of doubt) any intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the foregoing; or
(x) any combination of the foregoing.
(c) The Issuers and the Guarantors shall (i) make such withholding or deduction of Taxes as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority 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 or any Guarantee is due and payable, if the Issuers or any 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 or any Guarantee is due and payable, in which case it will be promptly thereafter), the Issuers shall deliver to the Trustee, with a copy to the Paying Agent, an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The 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 13.02 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, issue, 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 (2ii) the receipt of any payments with respect to, or enforcement of, the Notes or any Guarantee. Upon written request, any of the Issuers or a Guarantor will furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing the 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 the procedures described in Section 13.02, 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 Guarantor will provide the Trustee or such Holder with other evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee 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 of (or principal, premium, if any, on) or interest on such Notes to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, to the extent that a beneficiary amount payable under or settlor with respect to any Note (including payments thereof made pursuant to a Guarantee), 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 of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing reference includes the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Amounts, if applicable.
(f) This Section shall 4.12 will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction (other than the United States, any state thereof or the District of Columbia) in which any successor Person to any of the Issuer Issuers or Guarantors is organized incorporated, resident or doing business for tax purposes or any jurisdiction from or through which such person makes any payment on the Notes (or any Guarantee) and any department, political subdivision or taxing governmental authority of or agency thereof or thereinin any of the foregoing having the power to tax.
Appears in 1 contract
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or (a) All payments made by the interpretation Company or administration thereof to withhold or deduct any amount from any payment made Guarantor under or with respect to its Guarantee the Notes or the Note Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future taxTaxes, dutyunless the withholding or deduction is then required by law. If any withholding or deduction for, levyor on account of, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) any Taxes imposed or levied by or on behalf of (1) any jurisdiction in which the government of the jurisdiction of organization Company or incorporation of such any Guarantor (including any successor or other surviving entity) is then incorporated, organized, engaged in business or resident for tax purposes or any political subdivision or any taxing authority thereof or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or (2) any jurisdiction from or through which payment under its Guarantee is made by or on behalf of the Company or any Guarantor (including, without limitation, the jurisdiction of any paying agent) (each of clause (1) and (2), a “Relevant Taxing Tax Jurisdiction”)) will at any time be required to be made from any payments made under or with respect to the Notes or the Note Guarantees, such Guarantor shall including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Company or the relevant Guarantor, as applicable, will pay such additional amounts (the “Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by the Holders each holder (including payments of Additional Amounts) after such withholding or deduction shall not be less than will equal the amount the Holders 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 the foregoing obligation to pay no Additional Amounts does not apply will be payable with respect to any of the following (areferred to herein as “Excluded Taxes”):
(1) any Taxes that would not have been so imposed but for the existence of any present holder or former connection between the relevant Holder beneficial owner (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of the holder, as the case may be) of the Notes being a citizen or resident or national of, organized in or possessor of power over carrying on a business in the relevant Holder, if Tax Jurisdiction in which such Taxes are imposed or having any other present or former connection with the relevant Holder is an estate, nominee, trust or corporation) and the Relevant Taxing Tax Jurisdiction (other than the mere acquisition, holding, disposition, enforcement or receipt of such payment in respect of the Notes;
(2) any Taxes that are imposed or withheld as a result of the ownership failure of the holder or holding beneficial owner of the Notes outside to comply with any reasonable written request, made to that holder or beneficial owner in writing at least 30 days before any such withholding or deduction would be made, by the Company, any Guarantor or any Paying Agent to provide timely and accurate information concerning the nationality, residence or identity of such holder or beneficial owner or to make any valid and timely declaration or similar claim or satisfy any certification, information or other reporting requirement, which is required or imposed by a statute, treaty, regulation or administrative practice of the jurisdiction relevant Tax Jurisdiction as a precondition to any exemption from or reduction in all or part of organization such Taxes, but only to the extent that the Holder or incorporation of beneficial owner is legally eligible to provide such evidence and such compliance is not more onerous to the GuarantorHolder or beneficial owner than would be comparable certification, information, documentation or other reporting requirements imposed under U.S. tax law, regulation and administrative practice (such as IRS Forms W-8 and W-9 or any comparable successor forms); or ;
(b3) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required Taxes imposed with respect to pay Additional Amounts (1) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had any Note presented the Notes for payment within (where presentation is required for payment) more than 30 days after the date on which such the relevant payment or such Notes is 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 holder would have been entitled to Additional Amounts had the Notes Note been presented on the last any day of during such 30-day period);
(4) any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(5) any Tax required to be withheld or deducted under Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended, or any amended or successor versions of such Sections (2“FATCA”), any regulations or other guidance thereunder, or any agreement (including any intergovernmental agreement) entered into in connection therewith, or any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA or an intergovernmental agreement in respect of FATCA;
(6) any Taxes withheld, deducted or imposed because the holder or beneficial owner of the Notes, or any other person entitled to payments under the Notes, does not deal at arm’s length with the Company or a relevant Guarantor or paying agent for purposes of the Income Tax Act (Canada) or is a person who is, or who does not deal at arm’s length with, a person who is a “specified shareholder” (as defined in subsection 18(5) of the Income Tax Act (Canada)) of the Company or a relevant Guarantor or paying agent at a relevant time;
(7) any Taxes withheld, deducted or imposed on a payment on or with respect to any payment of principal of (or premium, if any, on) or interest on such the Notes to any Holder who a holder that is a fiduciary or fiduciary, a partnership or any a person other than the sole beneficial owner of any such payment, to the extent that if 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 payment of Additional Amounts had such beneficiary, settlor, member or beneficial owner it been the actual Holder holder of the Note; or
(8) any combination of items (1) through (7) of this Section 4.18(a).
(b) If the Company or any Guarantor becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes, the Company will deliver to the Trustee and the Canadian Co-Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Company shall notify the Trustee promptly thereafter) an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officers’ Certificate must also set forth any other information reasonably necessary to enable the Paying Agent to pay Additional Amounts to holders on the relevant payment date. Each of the Trustee and the Canadian Co-Trustee shall be entitled to rely solely on such NotesOfficers’ Certificate as conclusive proof that such payments are necessary. The Company will provide the Trustee and the Canadian Co-Trustee with documentation reasonably satisfactory to each of them evidencing the payment of Additional Amounts.
(c) The Company or the relevant Guarantor will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant taxing authority in accordance with applicable law. Upon request, the Issuer shall Company will provide to the Trustee with an official receipt or, if official receipts or are not obtainable, other documentation reasonably satisfactory to the Trustee and the Canadian Co-Trustee evidencing the payment of any Taxes so deducted or withheld. The Company will be responsible for making all calculations called for under this Indenture and the Taxes Notes and each of the Trustee and the Canadian Co-Trustee shall be entitled to conclusively rely on any such calculation provided for in an Officers’ Certificate or otherwise.
(d) Whenever in this Indenture there is mentioned, in any context (i) the payment of principal (and premium, if any), (ii) redemption prices or purchase prices in connection with a redemption or repurchase of Notes, (iii) interest, or (iv) any other amount payable under or with respect to which any of the Notes, such mention shall be deemed to include mention of the payment of Additional Amounts are paidto the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The Company and the Guarantors, jointly and severally, will indemnify the Trustee, the Canadian Co-Trustee and each holder or beneficial owner of the Notes for and hold them harmless against the full amount of (i) any Taxes, other than Excluded Taxes, paid by the Trustee or any Paying Agent or any holder or beneficial owner of the Notes in connection with payments made under or with respect to the Notes or the Note Guarantees held by such holder or beneficial owner and (ii) any Taxes, other than Excluded Taxes, levied or imposed with respect to any reimbursement under the foregoing clause (i) or this clause (ii). A certificate as to the amount of such requested indemnification, delivered by the Trustee, the Canadian Co-Trustee or any Paying Agent or such holder, shall be conclusive absent manifest error. The Company will pay, and indemnify the Trustee, the Canadian Co-Trustee, the Paying Agent and each holder for, any present or future stamp, issue, registration, transfer, court or documentary taxes or any other excise, property or similar Taxes that arise in any relevant Tax Jurisdiction (and, in the case of enforcement, any jurisdiction) from the execution, issuance, delivery or enforcement of the Notes, the Note Guarantees, this Indenture, the Collateral Documents or any other document or instrument in relation thereto, or the receipt of any payments with respect to the Notes or any Note Guarantees.
(f) The obligations described under in this Section shall 4.18 will survive any termination, defeasance or discharge of this Indenture Indenture, and shall transfer by a holder or beneficial owner of the Notes, and will apply mutatis mutandis to any jurisdiction (i) in which any successor Person to the Issuer Company or any Guarantor is organized organized, engaged in business or resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereintherein or (ii) from or through which payment is made by or on behalf of such successor Person.
Appears in 1 contract
Sources: Indenture (Greenfire Resources Ltd.)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or (a) All payments made by the interpretation Company or administration thereof to withhold or deduct any amount from any payment made Guarantor under or with respect to its Guarantee the Notes or the Note Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future taxTaxes, dutyunless the withholding or deduction is then required by law. If any withholding or deduction for, levyor on account of, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) any Taxes imposed or levied by or on behalf of (1) any jurisdiction in which the government of the jurisdiction of organization Company or incorporation of such any Guarantor (including any successor or other surviving entity) is then incorporated, organized, engaged in business or resident for tax purposes or any political subdivision or any taxing authority thereof or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or (2) any jurisdiction from or through which payment under its Guarantee is made by or on behalf of the Company or any Guarantor (including, without limitation, the jurisdiction of any paying agent) (each of clause (1) and (2), a “Relevant Taxing Tax Jurisdiction”)) will at any time be required to be made from any payments made under or with respect to the Notes or the Note Guarantees, such Guarantor shall including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Company or the relevant Guarantor, as applicable, will pay such additional amounts (the “Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by the Holders each holder (including payments of Additional Amounts) after such withholding or deduction shall not be less than will equal the amount the Holders 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 the foregoing obligation to pay no Additional Amounts does not apply will be payable with respect to any of the following (areferred to herein as “Excluded Taxes”):
(1) any Taxes that would not have been so imposed but for the existence of any present holder or former connection between the relevant Holder beneficial owner (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of the holder, as the case may be) of the Notes being a citizen or resident or national of, organized in or possessor of power over carrying on a business in the relevant Holder, if Tax Jurisdiction in which such Taxes are imposed or having any other present or former connection with the relevant Holder is an estate, nominee, trust or corporation) and the Relevant Taxing Tax Jurisdiction (other than the mere acquisition, holding, disposition, enforcement or receipt of such payment in respect of the Notes;
(2) any Taxes that are imposed or withheld as a result of the ownership failure of the holder or holding beneficial owner of the Notes outside to comply with any reasonable written request, made to that holder or beneficial owner in writing at least 30 days before any such withholding or deduction would be made, by the Company, any Guarantor or any Paying Agent to provide timely and accurate information concerning the nationality, residence or identity of such holder or beneficial owner or to make any valid and timely declaration or similar claim or satisfy any certification, information or other reporting requirement, which is required or imposed by a statute, treaty, regulation or administrative practice of the jurisdiction relevant Tax Jurisdiction as a precondition to any exemption from or reduction in all or part of organization such Taxes, but only to the extent that the Holder or incorporation of beneficial owner is legally eligible to provide such evidence and such compliance is not more onerous to the GuarantorHolder or beneficial owner than would be comparable certification, information, documentation or other reporting requirements imposed under U.S. tax law, regulation and administrative practice (such as IRS Forms W-8 and W-9 or any comparable successor forms); or ;
(b3) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required Taxes imposed with respect to pay Additional Amounts (1) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had any Note presented the Notes for payment within (where presentation is required for payment) more than 30 days after the date on which such the relevant payment or such Notes is 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 holder would have been entitled to Additional Amounts had the Notes Note been presented on the last any day of during such 30-day period);
(4) any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(5) any Tax required to be withheld or deducted under Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended, or any amended or successor versions of such Sections (2“FATCA”), any regulations or other guidance thereunder, or any agreement (including any intergovernmental agreement) entered into in connection therewith, or any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA or an intergovernmental agreement in respect of FATCA;
(6) any Taxes withheld, deducted or imposed because the holder or beneficial owner of the Notes, or any other person entitled to payments under the Notes, does not deal at arm’s length with the Company or a relevant Guarantor or paying agent for purposes of the Income Tax Act (Canada) or is a person who is, or who does not deal at arm’s length with, a person who is a “specified shareholder” (as defined in subsection 18(5) of the Income Tax Act (Canada)) of the Company or a relevant Guarantor or paying agent at a relevant time;
(7) any Taxes withheld, deducted or imposed on a payment on or with respect to any payment of principal of (or premium, if any, on) or interest on such the Notes to any Holder who a holder that is a fiduciary or fiduciary, a partnership or any a person other than the sole beneficial owner of any such payment, to the extent that if 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 payment of Additional Amounts had such beneficiary, settlor, member or beneficial owner it been the actual Holder holder of the Note; or
(8) any combination of items (1) through (7) of this Section 4.18(a).
(b) If the Company or any Guarantor becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes, the Company will deliver to the Trustee and the Canadian Co-Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Company shall notify the Trustee promptly thereafter) an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officers’ Certificate must also set forth any other information reasonably necessary to enable the Paying Agent to pay Additional Amounts to holders on the relevant payment date. Each of the Trustee and the Canadian Co-Trustee shall be entitled to rely solely on such NotesOfficers’ Certificate as conclusive proof that such payments are necessary. The Company will provide the Trustee and the Canadian Co-Trustee with documentation reasonably satisfactory to each of them evidencing the payment of Additional Amounts.
(c) or the relevant Guarantor will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant taxing authority in accordance with applicable law. Upon request, the Issuer shall Company will provide to the Trustee with an official receipt or, if official receipts or are not obtainable, other documentation reasonably satisfactory to the Trustee and the Canadian Co-Trustee evidencing the payment of any Taxes so deducted or withheld. The Company will be responsible for making all calculations called for under this Indenture and the Taxes Notes and each of the Trustee and the Canadian Co-Trustee shall be entitled to conclusively rely on any such calculation provided for in an Officers’ Certificate or otherwise.
(d) Whenever in this Indenture there is mentioned, in any context (i) the payment of principal (and premium, if any), (ii) redemption prices or purchase prices in connection with a redemption or repurchase of Notes, (iii) interest, or (iv) any other amount payable under or with respect to which any of the Notes, such mention shall be deemed to include mention of the payment of Additional Amounts are paidto the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The Company and the Guarantors, jointly and severally, will indemnify the Trustee, the Canadian Co-Trustee and each holder or beneficial owner of the Notes for and hold them harmless against the full amount of (i) any Taxes, other than Excluded Taxes, paid by the Trustee or any Paying Agent or any holder or beneficial owner of the Notes in connection with payments made under or with respect to the Units, the Notes or the Note Guarantees held by such holder or beneficial owner and (ii) any Taxes, other than Excluded Taxes, levied or imposed with respect to any reimbursement under the foregoing clause (i) or this clause (ii). A certificate as to the amount of such requested indemnification, delivered by the Trustee, the Canadian Co-Trustee or any Paying Agent or such holder, shall be conclusive absent manifest error. The Company will pay, and indemnify the Trustee, the Canadian Co-Trustee, the Paying Agent and each holder for, any present or future stamp, issue, registration, transfer, court or documentary taxes or any other excise, property or similar Taxes that arise in any relevant Tax Jurisdiction (and, in the case of enforcement, any jurisdiction) from the execution, issuance, delivery or enforcement of the Units, the Notes, the Note Guarantees, this Indenture, the Collateral Documents or any other document or instrument in relation thereto, or the receipt of any payments with respect to the Notes or any Note Guarantees.
(f) The obligations described under in this Section shall 4.18 will survive any termination, defeasance or discharge of this Indenture Indenture, and shall transfer by a holder or beneficial owner of the Notes, and will apply mutatis mutandis to any jurisdiction (i) in which any successor Person to the Issuer Company or any Guarantor is organized organized, engaged in business or resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereintherein or (ii) from or through which payment is made by or on behalf of such successor Person.
Appears in 1 contract
Sources: Indenture (Greenfire Resources Ltd.)
Additional Amounts. If a Guarantor that is (a) All payments made by a Foreign Subsidiary Guarantor in respect of a Guarantee will be made free and clear of and without withholding or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made under or with respect to its Guarantee for deduction for, or on account of of, any present or future taxTaxes unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, dutyor on account of, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) any Taxes imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such the relevant Foreign Guarantor is then incorporated or organized or resident for tax purposes or purposes, any jurisdiction from or through which payment under its Guarantee on behalf of such Foreign Guarantor is made or any political subdivision or governmental authority thereof or therein having power to tax (each other than the United States) (each, a “Relevant Taxing Tax Jurisdiction”), such will at any time be required to be made from any payments made by or on behalf of the relevant Foreign Guarantor shall under its Guarantee, the relevant Foreign Guarantor will pay such additional amounts (the “Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by the Holders each Holder (including Additional Amounts) after such withholding or deduction shall not be less than will equal the amount the Holders 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 the foregoing obligation to pay no Additional Amounts does not apply to will be payable with respect to:
(ai) any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant Holder or the beneficial owner of the New Third Lien Secured Note or Guarantee (or between a fiduciary, settlorsettler, beneficiary, partner, member or shareholder of, or possessor of power over the relevant HolderHolder or beneficial owner, if the relevant Holder is an estate, nominee, trust trust, partnership, limited liability company, unlimited liability company or corporation) and the Relevant Taxing Jurisdiction (relevant Tax Jurisdiction, other than by the mere receipt of such payment or the ownership acquisition or holding of any New Third Lien Secured Note or the Notes outside enforcement or receipt of payment under or in respect of any New Third Lien Secured Note or Guarantee;
(ii) any Taxes imposed or withheld as a result of the jurisdiction of organization or incorporation failure of the Guarantor); Holder or (b) beneficial owner of any estateNew Third Lien Secured Note or Guarantee to comply with any written request, inheritancemade to that Holder or beneficial owner within a reasonable period before any such withholding or deduction would be payable, giftby the Company or a Foreign Guarantor to provide timely or accurate information concerning the nationality, sales, excise, transfer, personal property tax residence or identity of such Holder or beneficial owner or to make any valid or timely declaration or similar taxclaim or satisfy any certification information or other reporting requirements (in each case, assessment to the extent such Holder or governmental charge; nor shall such Guarantor be beneficial owner is legally eligible to do so), which is required or imposed by a statute, treaty, regulation or administrative practice of the relevant Tax Jurisdiction as a precondition to pay Additional Amounts (1) if exemption from, or reduction in the payment could have been made without such rate of deduction or withholding if the beneficiary of such Taxes;
(iii) any Taxes that are imposed or withheld as a result of the payment had presented the Notes presentation of any New Third Lien Secured Note or Guarantee for payment within 30 (where presentation is required) more than fifteen (15) days after the date on which such relevant payment is first made available for payment to the Holder or such Notes became due and payable or the date on which payment thereof is duly provided for, whichever is later beneficial owner (except to the extent that the Holder or beneficial owner would have been entitled to Additional Amounts had the Notes New Third Lien Secured Note been presented on the last day of such 30-fifteen (15) day period);
(iv) any estate, inheritance, gift, value added, sale, excise, transfer, personal property or similar tax or assessment;
(2v) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to any New Third Lien Secured Note or Guarantee;
(vi) any Tax imposed on or with respect to any payment of principal of (or premium, by a Foreign Guarantor to the Holder if any, on) or interest on such Notes to any Holder who is a fiduciary fiduciary, partnership, limited liability company, unlimited liability company or partnership or any person other than the sole beneficial owner of such payment, payment to the extent that a beneficiary or settlor with respect to Taxes would not have been imposed on such fiduciary, a member of payment had such a partnership or Holder been the sole beneficial owner of such New Third Lien Secured Note or Guarantee;
(vii) any Taxes that are imposed or withheld as a result of the presentation of any New Third Lien Secured Note or Guarantee for payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member by or on behalf of a Holder or beneficial owner been the actual Holder of such New Third Lien Secured Notes or Guarantee who would have been able to avoid such withholding or deduction by presenting the relevant New Third Lien Secured Note or Guarantee to, or otherwise accepting payment from, another paying agent;
(viii) any Taxes that are imposed or withheld pursuant to Sections 1471 through 1474 of the Code, 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 foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code; or
(ix) any combination of the provisions in Section 4.10(a)(i) through Section 4.10(a)(viii) above.
(b) The relevant Foreign Guarantor will pay when due any present or future stamp, transfer, court or documentary Taxes or any other excise or property Taxes that arise in a Tax Jurisdiction with respect to the initial execution, delivery or registration of the Guarantees or any other document or instrument relating thereto (other than the New Third Lien Secured Notes. Upon request).
(c) The relevant Foreign Guarantor will use reasonable efforts to furnish to the Holders, within a reasonable period of time after the Issuer shall provide due date for the Trustee with official payment of any Taxes so deducted or withheld pursuant to applicable law, either certified copies of tax receipts or evidencing such payment by such Foreign Guarantor (in such form as provided in the ordinary course by the relevant Tax Jurisdiction and as is reasonably available to the Foreign Guarantor), or, if such receipts are not obtainable, other documentation evidence of such payments by such Foreign Guarantor reasonably satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or thereinHolders.
Appears in 1 contract
Sources: Third Lien Indenture (Bed Bath & Beyond Canada L.P.)
Additional Amounts. If a Guarantor All payments that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made Issuer makes under or with respect to its Guarantee the 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 (hereinafter collectively, “Taxes”) imposed or levied on such payments by or on behalf of any jurisdiction (other than the government United States, any state thereof or the District of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction Columbia) in which such Guarantor the Issuer is organized, resident or doing business for tax purposes or any jurisdiction from or through which it (or its agents, including the Paying Agent) makes any payment under its Guarantee is made on this Note or by or within any department, political subdivision or governmental authority of or in any of the foregoing having power to tax (each each, a “Relevant Taxing Jurisdiction”), such Guarantor unless the Issuer 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 of law. If the Issuer or other applicable withholding agent is 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 this Note, the Issuer shall pay such additional amounts (“Additional Amounts”) as may be necessary so to ensure that the net amount received by each beneficial owner of the Holders (including Additional Amounts) Notes after such withholding or deduction shall (including any withholding or deduction in respect of any Additional Amounts) will not be less than the amount the Holders beneficial owner would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to (a) 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, 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 of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if 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 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 that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder 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 of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Additional Amounts. If
(a) All payments of principal of, Premium, if any, and interest on the Notes made by the Issuer pursuant to the Notes shall be made free and clear of, and without withholding or deduction for or on account of, any present or future Taxes imposed or levied by or on behalf of a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation Taxing Jurisdiction, unless the Issuer is required to withhold or deduct Taxes by applicable law or by the interpretation or administration thereof thereof. If the Issuer is required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to its Guarantee for or on account of any present or future taxthe Notes, 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 government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to taxIssuer shall pay, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”)cause to be paid, such Guarantor shall pay subject to certain exceptions and limitations set forth below, such additional amounts (the “Additional Amounts”) as may be necessary so that the net amount received by each holder (in respect of the Holders beneficial owner thereof) (including Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders such holder would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay no Additional Amounts will be payable with respect to a payment made to a holder or beneficial owner or to a third party on behalf of a holder or beneficial owner (an “Excluded Holder”) with respect to:
(i) any Tax imposed on, or deducted or withheld from, payments in respect of the Notes to a beneficial owner (A) by reason of it being a Person with whom the Issuer does not apply to deal at arm’s length for the purposes of the income tax laws of the Taxing Jurisdiction at the time of making such payment or (aB) any Taxes that would not have been so imposed but for by reason of the existence of any present or former connection (including, without limitation, carrying on business or having a permanent establishment or fixed base) between the relevant Holder such beneficial owner (or between a fiduciary, settlor, beneficiary, member member, shareholder or shareholder other equity owner of, or possessor of power over the relevant Holderover, such beneficial owner, if the relevant Holder such beneficial owner is an estate, nomineetrust, trust partnership, limited liability company, corporation or corporationother entity) and the Relevant Taxing Jurisdiction (including, without limitation, any Tax imposed on such beneficial owner’s net income) other than the mere receipt of such payment holding, or receiving payments under, or enforcing any rights in respect of, the ownership or holding of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or Notes;
(bii) any estate, inheritance, gift, sales, excise, transfer, stamp, excise or personal property tax Tax or any similar Tax;
(iii) any Tax imposed on, or deducted or withheld from, payments in respect of the Notes to a holder or beneficial owner as a result of the failure of such holder or beneficial owner (A) to duly and timely comply with any certification, identification, information, documentation, or similar taxreporting requirements concerning the nationality, assessment residence, entitlement to treaty benefits, identity or governmental charge; nor shall connection with the relevant Taxing Jurisdiction of such Guarantor be holder or beneficial owner or (B) to duly and timely make a declaration, claim or filing for exemption from or reduction in the rate of such Tax, if such compliance or the making of such declaration, claim or filing is required by statute, treaty, regulation or administrative pronouncement or practice, as a precondition to pay exemption from or reduction in the rate of such Tax;
(iv) any Tax imposed on, or deducted or withheld from, payments in respect of the Notes to a holder which is a fiduciary or partnership (including any entity or arrangement treated as a partnership by the relevant Taxing Jurisdiction) or to any person other than the sole beneficial owner of such payments to the extent that any beneficiary or settler with respect to such fiduciary, any partner or member of such partnership or such beneficial owner would not have been entitled to such Additional Amounts with respect to such payments had such beneficiary, settler, partner, member or beneficial owner received directly its beneficial or distributive share of such payments;
(1v) any Tax imposed on, or deducted or withheld from, payments in respect of the Notes to a holder or beneficial owner if the payment such payments could have been made without such imposition, deduction or withholding if the beneficiary of the payment such Tax had such Notes been presented the Notes for payment (where presentation is required) within 30 days after the date on which such payment 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 that the Holder such holder or beneficial owner would have been entitled to such Additional Amounts had the such Notes been presented on the last day of such 30-day period), or ;
(2vi) with respect any Tax required to be withheld by any Paying Agent from any payment of principal of (or premiumprincipal, if any, on) Premium or interest on the Notes if such Notes payment can be made without such withholding by at least one other Paying Agent;
(vii) any Taxes which are payable otherwise than by withholding from payment of principal, Premium or interest on the Notes; or
(viii) any combination of items (i) through (vii).
(b) If the Issuer is required to any Holder who is a fiduciary withhold 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 deduct Taxes by law 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 Notes. Upon requestinterpretation thereof, the Issuer shall provide (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law.
(c) The Issuer shall furnish the Trustee with official or holders, within 30 days after the date the payment of any Taxes is due pursuant to applicable law, certified copies of tax receipts or evidencing such payment by the Issuer or, if certified copies of tax receipts are not reasonably available to the Issuer, such other documentation evidencing such payment by the Issuer that is reasonably satisfactory to the Trustee evidencing Trustee. The Issuer shall indemnify each beneficial owner of Notes (other than an Excluded Holder) for the amount of (A) any Taxes (other than Taxes to the extent described in clauses (i) to (viii) above or in respect of a payment described in clauses (i) to (viii) above) so levied or imposed and paid by such beneficial owner as a result of the Taxes payments made under or with respect to which Additional Amounts are paid. The obligations described under this Section shall survive the Notes, and (B) any terminationcost or expense arising therefrom or with respect thereto, defeasance or discharge of this Indenture including interest and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.penalties ((A) and
Appears in 1 contract
Sources: Trust Indenture
Additional Amounts. If (a) All payments made by or on behalf of an Issuer or any Guarantor (each a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made “Payor”) under or with respect to its the Notes or any Note Guarantee 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 similar liabilities related thereto) (hereinafter collectively, “Taxes”) imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor Payor is organized, resident or doing business for tax purposes or any jurisdiction from or through which such Payor (or its agents) makes any payment under its on the Notes or any Note Guarantee is made or any department or political subdivision thereof (each each, a “Relevant Taxing Jurisdiction”), unless such Guarantor shall Payor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If a 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 or any Note Guarantee, such Payor, subject to the exceptions stated below, will pay such additional amounts (“Additional Amounts”) as may be necessary so such that the net amount received in respect of such payment by the Holders (including Additional Amounts) each Holder and beneficial owner after such withholding or deduction shall (including withholding or deduction attributable to Additional Amounts payable hereunder) will not be less than the amount the Holders Holder or beneficial owner would have received if such Taxes had not been required to be so withheld or deducted; provided.
(b) A Payor will not, however, that the foregoing obligation to pay Additional Amounts does to a Holder or beneficial owner of Notes:
(i) for or on account of any Canadian withholding Taxes that are imposed by reason of the Holder or beneficial owner of Notes not apply dealing at arm’s length (for the purpose of the Income Tax Act (Canada)) with the Payor at the time of making such payment,
(ii) to the extent that the Additional Amounts are in respect of the application of the thin capitalization rules in subsections 18(4) to (a6) any of the Income Tax Act (Canada), along with proposed amendments to subsections 18(6) and (6.1) of the Income Tax Act (Canada), other than by reason of an interest or right in property that secures payment of a debt or other obligation which interest or right was provided directly or indirectly by Parent or a non-resident of Canada that is a Subsidiary of the Payor or that is otherwise related to the Payor for purposes of the Income Tax Act (Canada);
(iii) to the extent the Taxes that giving rise to such Additional Amounts would not have been so imposed but for the existence of any present or former connection between the relevant a Holder (or between the beneficial owner of, or person ultimately entitled to obtain an interest in, such Notes, including a fiduciary, settlorsettler, beneficiary, member member, partner, shareholder or shareholder other equity interest owner of, or possessor of power over the relevant Holderover, such holder or beneficial owner, if the relevant Holder such holder or beneficial owner is an estate, nomineetrust, trust partnership, limited liability company, corporation or corporationother entity) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, the Relevant Taxing Jurisdiction) other than any connection resulting solely from the mere acquisition, ownership, or disposition of Notes, the receipt of payments thereunder and/or the exercise or enforcement of rights under any Notes or any Note Guarantee;
(iv) to the extent the Taxes giving rise to such payment or Additional Amounts would not have been imposed but for the ownership or holding failure of the Notes outside Holder or beneficial owner of Notes, to the jurisdiction extent such Holder or beneficial owner is legally eligible to do so, to satisfy any certification, identification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction or arm’s length-relationship with the Payor and the Holder or beneficial owner or otherwise establishing the right to the benefit of organization an exemption from, or incorporation reduction in the rate of, withholding or deduction, if (a) such compliance is required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the Guarantor); rate of deduction or withholding of, such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction) and (b) the Payor has provided the Trustee with 30 days’ prior written notice of such requirement;
(v) with respect to any estate, inheritance, gift, sales, excise, transfer, personal property tax sales or any similar tax, assessment Taxes;
(vi) if such Holder is a fiduciary or governmental charge; nor shall partnership or person other than the sole beneficial owner of such Guarantor be required payment and the Taxes giving rise to pay such Additional Amounts (1) if the payment could would not have been made without imposed on such deduction or withholding if the beneficiary of the payment had presented the Notes Holder been the beneficiary, partner or sole beneficial owner, as the case may be, of such Note;
(vii) 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 within on a date more than 30 days after the date on which such payment or such Notes became due and payable or the date on which payment thereof is duly provided for, whichever is later occurs later;
(except viii) with respect to (a) any Tax imposed or levied by, or on behalf of, the United States of America or any State thereof or the District of Columbia (or any political subdivision of the foregoing) or (b) any Taxes that are imposed or withheld pursuant to Sections 1471 through 1474 of the Code, as of the date of this Indenture (or any amended or successor version of such sections), any regulations promulgated thereunder, any official interpretations thereof, and any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United Sates with respect to the extent that foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or Code;
(2ix) with respect to any Taxes imposed on a payment to an individual and required to be made pursuant to the European Union Directive on the taxation of principal savings income which was adopted by the ECOFIN Council (the Council of the EU Finance and Economic Ministers), or any law implementing or complying with, or introduced to conform to, such directive, or pursuant to related measures entered into on a reciprocal basis between member states of the European Union and certain non-European countries and dependent or associated territories;
(x) with respect to any Tax which is payable otherwise than by withholding from payments on or premiumin respect of the Notes or any Note Guarantee; or
(xi) any combination of items (i) through (x) of this Section 4.19(b).
(c) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or any Note Guarantee is due and payable, if any, on) or interest on such Notes a Payor will be obligated to any Holder 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 pay Additional Amounts with respect to such fiduciarypayment (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 Payor will deliver to the Trustee 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 to pay such Additional Amounts to Holders on the payment date. The Payor will promptly publish a member notice in accordance with the provisions set forth in Section 13.01 hereof stating that such Additional Amounts will be payable and describing the obligation to pay such amounts.
(d) Each Holder entitled to any Additional Amounts shall cooperate with the Issuers and the Trustee in providing any information or documentation reasonably requested by the Issuers or the Trustee to confirm the identity and/or tax status of such a partnership Holder and any affected beneficial owner (to the extent necessary to establish such Holder’s entitlement to Additional Amounts) and to assist the Issuers or the Trustee in determining the applicable withholding tax rate and the amount of Additional Amounts payable in respect thereof.
(e) In addition, the Payor will pay, and indemnify the Holders and beneficial owners of the Notes for, 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 Notes, any Note Guarantee or any other document or instrument referred to thereunder and any such taxes, charges or duties imposed by any Relevant Taxing Jurisdiction as a result of, or in connection with, any payments made pursuant to the Notes or any Note Guarantee and/or the enforcement of the Notes or any Note Guarantee and/or any other such document or instrument; provided, however, that the indemnification or reimbursement obligations provided for in this paragraph shall not extend to Taxes for which the Holder or beneficial owner of such payment the Notes would not have been entitled eligible to receive payment of Additional Amounts hereunder by virtue of clauses (i) through (xi) above or to the Additional Amounts had extent such beneficiary, settlor, member Holder or beneficial owner been the actual Holder of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes received Additional Amounts with respect to which Additional Amounts are paid. such payments.
(f) The obligations described under in this Section shall 4.19 will survive any termination, defeasance or discharge of this the Indenture and shall will apply mutatis mutandis to any successor Person to any Payor and to any jurisdiction in which any such successor Person to the Issuer is organized or is otherwise resident or doing business for tax purposes or any political subdivision jurisdiction from or taxing authority through which payment is made by such successor or agency thereof its respective agents. Whenever this Indenture refers to, in any context, the payment of principal, premium, if any, interest or thereinany other amount payable under or with respect to any Note, such reference shall include the payment of Additional Amounts or indemnification payments as described hereunder, if applicable.
Appears in 1 contract
Additional Amounts. If a Guarantor that is a Foreign Subsidiary (a) All payments made by or is a Puerto Rican corporation is required by applicable law or by on behalf of the interpretation or administration thereof to withhold or deduct any amount from any payment made Company under or with respect to its Guarantee the Notes, or by or on behalf of any Guarantor under or with respect to any Note 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 government of the jurisdiction Canada, any province or territory of organization or incorporation of such Guarantor Canada or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such the Company or any Guarantor is is, at any time, organized, carrying on business, or otherwise resident for tax purposes or any jurisdiction from or through which any payment under its Guarantee by such parties is made (each each, a “Relevant Taxing Jurisdiction”), unless such Person is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(b) If the Company, any Guarantor (each such person, a “Payor”) or any applicable withholding agent is 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 a Note Guarantee, the applicable Payor shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders a beneficial owner of Notes (including Additional Amounts) after such withholding or deduction shall (including any withholding or deduction on any Additional Amounts) will not be less than the amount the Holders such beneficial owner of Notes would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation obligations to pay Additional Amounts does shall not apply to (a1) any Canadian withholding Taxes imposed on a payment to a Holder or beneficial owner of Notes with which the applicable Payor does not deal at arm’s length (within the meaning of the Income Tax Act (Canada)) (the “Tax Act”) at the time of the payment; (2) any Canadian withholding Taxes imposed on a payment to a Holder or beneficial owner of Notes by reason of such Holder or beneficial owner of Notes being a “specified non-resident shareholder” of the Company (as defined in subsection 18(5) of the Tax Act) or by reason of such Holder or beneficial owner of Notes not dealing at arm’s length with a “specified shareholder” of the Company (as defined in subsection 18(5) of the Tax Act); (3) 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 beneficial owner of Notes and the Relevant Taxing Jurisdiction including, for greater certainty and without limitation, such Holder or beneficial owner being or having been a fiduciarycitizen, settlor, beneficiary, member resident or shareholder ofnational thereof, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust being or corporation) and 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 arising from the mere acquisition, ownership, holding or disposition of a Note or a beneficial interest therein or the enforcement of rights under or the receipt of such any payment in respect of a Note or the ownership or holding of the Notes outside of the jurisdiction of organization or incorporation of the Guarantora Note Guarantee); or (b4) any estate, inheritance, gift, sales, excise, transfer, personal property tax transfer or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (15) any deduction or withholding of Taxes on a payment if the payment could have been made without such deduction or withholding if the beneficiary beneficial owner of the payment had presented the Notes Note for payment within 30 days after the date on which such payment or is first made available to such Notes became due and payable or the date on which payment thereof is duly provided for, whichever is later beneficial owner (except to the extent that the Holder or beneficial owner would have been entitled to Additional Amounts had the Notes Note been presented on the last day of such 30-day period); (6) any Taxes that are imposed by reason of the Holder’s or beneficial owner’s failure, after a request by the Company or a Guarantor, to comply with any certification, documentation, information or other evidentiary requirement concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction if (i) compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to exemption from, or (2) with respect a reduction in the rate of deduction or withholding of, such Taxes to any payment of principal of (or premium, if any, on) or interest on which such Notes to any Holder 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 is entitled, (ii) in the actual case of Relevant Taxing Jurisdictions other than Canada, such compliance is not materially more onerous, in form, in procedure or in substance of information disclosed, to such Holder or beneficial owner than the information or other reporting requirements under United States federal tax law, regulation and administrative practice (such as Internal Revenue Service Forms W-8 or W-9) and (iii) such Holder or beneficial owner is legally eligible to provide such certification or documentation; or (7) any Taxes that are the result of such Notesany combination of any of the above clauses (any Taxes imposed by a Relevant Taxing Jurisdiction that are not excluded pursuant to any of the above clauses are referred to as “Indemnified Taxes”).
(c) The applicable Payor, if it is the applicable withholding agent, shall make any required withholding or deduction and remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. Upon request, the Issuer Company shall provide the U.S. Trustee on behalf of Holders and beneficial owners of the Notes (and the U.S. Trustee shall forthwith provide Holders and beneficial owners of the Notes) with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations .
(d) If a Payor is or will become obligated to pay Additional Amounts under or with respect to any payment made on the Notes or a Note Guarantee, at least 30 days prior to the date of such payment, such Payor shall deliver to the Trustees and the Paying Agent (if different) 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 or beneficial owners of Notes on the relevant payment date.
(e) 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 reference shall be deemed to include payment of Additional Amounts as described under this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The Company and the Guarantors shall indemnify and hold harmless the Trustees, the Agents and each Holder or beneficial owner the Notes for the amount of any Indemnified Tax (including, for greater certainty, taxes payable pursuant to Regulation 803 of the Income Tax Regulations (Canada)) levied or imposed and paid by the Trustees, the Agents, Holder or beneficial owner 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 shall pay any present or future stamp, court, issue, registration or documentary Taxes or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, enforcement or registration of the Notes, the Note Guarantees, this Indenture or any other document or instrument in relation thereof, or the receipt of any payments with respect to the Notes or any Note Guarantees and the Company and the Guarantors shall indemnify the Trustees, the Agents, the Holders and beneficial owners of Notes for any such amounts (including penalties, interest and other liabilities related thereto) paid by such Holders or beneficial owners.
(h) The obligations described in this Section 2.13 will survive any termination, defeasance or discharge of this Indenture and shall apply any transfer by a Holder or beneficial owner of its Notes, and will apply, mutatis mutandis mutandis, to any successor Person to the Company or any Guarantor and to any jurisdiction in which any successor Person to the Issuer is organized Company or any political subdivision Guarantor is, at any time, organized, carrying on business, or taxing authority otherwise resident for tax purposes or agency thereof any jurisdiction from or thereinthrough which payment is made.
Appears in 1 contract
Sources: Indenture (Eldorado Gold Corp /Fi)
Additional Amounts. If All payments made by the Co-Issuers or a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made under or with respect to its Guarantee the Notes or 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 or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) Taxes imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or Taxing Authority in any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such a Co-Issuer or Guarantor is organized or is otherwise resident or deemed resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”), unless a Co-Issuer or Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If a Co-Issuer or Guarantor is 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 the Guarantees, such Co-Issuer or Guarantor shall will (a) make such withholding or deduction, (b) remit the full amount deducted or withheld to the relevant authority in accordance with and in the time required under applicable law and (c) pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders each Holder (including Additional Amounts) after such withholding or deduction shall not be less than will equal the amount the Holders Holder would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay no Additional Amounts does not apply will be payable with respect to (a) 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, 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 of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or (b) any estate, inheritance, gift, sales, excisecapital gains, transfer, excise or personal property tax or any similar tax, assessment Tax or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if 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 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 that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder who is a fiduciary or partnership charge or any person other than the sole beneficial owner of such payment, to the extent Tax 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 beneficiaryimposed, settlor, member payable or beneficial owner been the actual Holder of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.due:
Appears in 1 contract
Sources: Indenture (Telesat Canada)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary (a) All payments made by or is a Puerto Rican corporation is required by applicable law or by on behalf of the interpretation or administration thereof to withhold or deduct any amount from any payment made Issuer under or with respect to its Guarantee the Securities, or by or on behalf of any Guarantor under or with respect to any Guarantee, 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) (hereinafter referred to as “Taxes”) imposed or levied by or on behalf of (1) the government of Canada or any province or territory of Canada, or (2) any other jurisdiction in which the jurisdiction of organization Issuer or incorporation of any such Guarantor is organized, or is otherwise carrying on business in, or is otherwise resident for tax purposes or (3) any jurisdiction from or through which payment is made, in each case including any political subdivision or any authority or agency therein or thereof having power to taxtax (each, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”), unless such Person is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(b) If the Issuer or any Guarantor shall (each such person, a “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 a Security or any Guarantee, such Payor will be required to pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders a Holder or Beneficial Owner of Securities (including withholdings and deductions on Additional Amounts) after such withholding or deduction shall (including withholding and deduction on Additional Amounts) will not be less than the amount the Holders such Holder or Beneficial Owner of Notes would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation obligations to pay Additional Amounts does not apply to (a1) any Holder or Beneficial Owner of Securities with which the applicable Payor does not deal at arm’s length (within the meaning of the Income Tax Act (Canada)) at the time of the payment; or (2) 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 Beneficial Owner of Securities and the Relevant Taxing Jurisdiction including, for greater certainty and without limitation, being or having been a fiduciarycitizen, settlor, beneficiary, member resident or shareholder ofnational thereof, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust being or corporation) and having been present or 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 receipt of such payment or the acquisition, ownership or holding of such Security or a beneficial interest therein or the Notes outside enforcement of rights thereunder or the jurisdiction receipt of organization or incorporation of the Guarantorany payment in respect thereof); or (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay will Additional Amounts be paid (1a) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Notes Security for payment within 30 days after the date on which such payment or such Notes Security 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 Security been presented on the last day of such 30-day period), or ; (2b) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, to the extent that relating to Taxes imposed by reason of the Holder’s or Beneficial Owner’s failure to comply with any certification, documentation, information or other evidence concerning such Holder’s or Beneficial Owner’s nationality, citizenship, residence, identity or other connection with the Relevant Taxing Jurisdiction if compliance is required by law, regulation, administrative practice or an applicable treaty as a beneficiary precondition to exemption from, or settlor with respect a reduction in the rate of deduction or withholding of, such Taxes to which such fiduciary, a member of such a partnership Holder or the beneficial owner of such payment Beneficial Owner is entitled; (c) any tax assessment or other governmental charge which would not have been entitled avoided by such Holder by presenting the relevant Security (if presentation is required); or (d) any combination of any of the above clauses (any such Tax in respect of which Additional Amounts are payable, an “Indemnified Tax”).
(c) The applicable Payor will make any required withholding or deduction and remit the full amount deducted or withheld to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such NotesRelevant Taxing Jurisdiction in accordance with applicable law. Upon request, the Issuer shall will provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. .
(d) If a Payor is or will become obligated to pay Additional Amounts under or with respect to any payment made on its Guarantee, at least 30 days prior to the date of such payment, such Payor will deliver to the Trustee an Officers’ 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.
(e) 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 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.
(f) The Issuer and the Guarantors will indemnify and hold harmless a Holder of the Securities 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 as a result of payments made under or with respect to the Securities or any Guarantee, and with respect to any reimbursements under this clause.
(g) Each of the Issuer and the Guarantors will pay any present or future stamp, court or documentary taxes or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, enforcement or registration of the Securities, the Guarantees, this Indenture or any other document or instrument in relation thereto, or the receipt of any payments with respect to the Securities or any Guarantees and each of the Issuer and the Guarantors will agree to indemnify the Holders of Securities for any such amounts (including penalties, interest and other liabilities related thereto) paid by such Holders.
(h) The obligations described under in this Section shall 3.20 will survive any termination, defeasance or discharge of this Indenture and shall will apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer or any Guarantor is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Lone Pine Resources Inc.)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary (a) All payments required to be made by or is a Puerto Rican corporation is required by applicable law or by on behalf of the interpretation or administration thereof to withhold or deduct any amount from any payment made Issuer under or with respect to its the Notes or by any Guarantor under or with respect to a Note Guarantee (the Issuer or such Guarantor and, in each case, any successor thereof, making such payment, the “Payor”), will 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 (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) taxes imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or tax within any other jurisdiction in which such Guarantor any Payor is incorporated, organized or otherwise resident for tax purposes purposes, or engaged in business for tax purposes, or any jurisdiction from or through which payment under its Guarantee is made by or on behalf of such Payor (each a “Relevant Taxing Jurisdiction”), unless such Guarantor shall Payor is required to withhold or deduct such taxes by law or regulation.
(b) If a Payor is so required to withhold or deduct any amount for or on account of taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or a Note Guarantee, as applicable, such Payor will be required to pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders any Holder (including Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders Holder or beneficial owner would have received if such Taxes taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to to:
(a1) any Taxes taxes that would not have been (or would not be required to be) so imposed imposed, withheld, deducted or levied but for the existence of any present or former connection between the relevant Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over over, the relevant HolderHolder or beneficial owner, if the relevant Holder or beneficial owner is an estate, nominee, trust trust, partnership, company or corporation) and the Relevant Taxing Jurisdiction Jurisdiction, including, without limitation, such Holder or beneficial owner being or having been a citizen, domiciliary, national or resident thereof, or being or having been present or engaged in a trade or business therein or having or having had a permanent establishment therein (other than any connection arising solely from the mere receipt of such payment or the ownership acquisition or holding of any Note, the Notes outside receipt of any payments in respect of such Note or Note Guarantee or the jurisdiction exercise or enforcement of organization or incorporation of the Guarantorrights under a Note Guarantee); or ;
(b2) any estate, inheritance, gift, sales, excise, sales transfer, personal property or similar tax or similar tax, assessment assessment;
(3) any taxes which are payable other than by withholding or governmental charge; nor shall such Guarantor deduction from payments made under or with respect to the Notes or any Note Guarantee;
(4) any taxes that would not have been (or would not be required to pay Additional Amounts be) imposed, withheld, deducted or levied if such Holder or the beneficial owner of any Note or interest therein (1i) if complied with all reasonable written requests by the Payor (made at a time that would enable the Holder or beneficial owner acting reasonably to comply with such request) to provide timely and accurate information or documentation concerning the nationality, residence or identity of such Holder or beneficial owner or (ii) made any declaration or similar claim or satisfy any certification, information or reporting requirement, which in the case of (i) or (ii), is required or imposed by a statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of withholding or deduction of, all or part of such taxes;
(5) any taxes imposed or withheld on or with respect to a payment which could have been made without such deduction or withholding if the beneficiary of the payment had presented the Notes Note for payment (where presentation is required) within 30 days after the date on which such payment or such Notes 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 or beneficial owner would have been entitled to Additional Amounts had the Notes Note been presented on any day during the last day of such 30-day period), ;
(6) any taxes imposed on or (2) with respect to any payment of principal of (made under or premium, if any, on) with respect to such Note or interest on such Notes Note Guarantee to any Holder who is a fiduciary or partnership or any person 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 sole beneficial owner of such Note;
(7) any taxes payable under Sections 1471-1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), as of the issue date of the Notes (or any amended or successor version), any regulations or official interpretations thereof, any intergovernmental agreement entered into in connection therewith, or any 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;
(8) any United States withholding taxes;
(9) any taxes, duties, assessments or other governmental charges imposed on a payment in respect of the Notes or Note Guarantee required to be made pursuant to laws enacted by Switzerland providing for the taxation of payments according to principles similar to those laid down in the draft legislation of the Swiss Federal Council of December 17, 2014, or otherwise changing the Swiss federal withholding tax system from an issuer-based system to a paying agent based system pursuant to which a person other than the Issuer is required to withhold tax on any interest payments; or
(10) any taxes imposed or levied by reason of any combination of clauses (1) through (7) of this Section 2.14(b).
(c) The Issuer and the Guarantors (as the case may be) will pay any present or future stamp, issue, registration, excise, property, court or documentary taxes, or similar taxes, charges or levies (referred to in this Section 2.14(c) as “stamp taxes”) for which the Issuer, any guarantor or a holder of Notes is accountable and interest, penalties and other reasonable expenses related thereto that arise in or are levied by any Relevant Taxing Jurisdiction on the execution, issuance, delivery, enforcement or registration of, or in connection with the payment under, the Notes, this Indenture, the Note Guarantees or any other document or instrument in relation thereto (other than on a transfer or assignment of the Notes) except for stamp taxes due as a result of registration or other action by the Holder where such registration or action is not necessary to maintain, preserve, establish, enforce, perfect or protect the rights of the Holder.
(d) The Payor will make or cause to be made any withholding or deduction required in respect of taxes, and remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction, in accordance with applicable law. Upon requestrequest from Holders, the Issuer shall Payor will use reasonable efforts to provide the Trustee Trustee, within a reasonable time after the date the payment of any such taxes so deducted or withheld is made, with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes taxes so deducted or withheld.
(e) If any Payor will be obligated to pay Additional Amounts under or with respect to which any payment made on the Notes, the Payor will deliver to the paying agent with a copy to the Trustee on a date that is at least 10 days prior to the date of that payment (unless the obligation to pay Additional Amounts are paidarises after the 10th day prior to that payment date, in which case the Payor shall notify the paying agent and the Trustee promptly thereafter) a certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable and such other information reasonably necessary to enable the paying agent to pay Additional Amounts to Holders on the relevant payment date. The Payor shall also deliver a form of Additional Amounts notice that can be delivered to the registered Holders.
(f) Whenever in this Indenture there is mentioned, in any context:
(1) the payment of principal;
(2) the payment of interest; or
(3) any other amount payable on or with respect to any of the Notes, such reference will be deemed to include payment of Additional Amounts as described in this Section 2.14 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(g) The obligations described under in this Section shall 2.14 will survive any termination, defeasance or discharge of this Indenture or any Note Guarantee and shall will apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer Payor is incorporated, organized or otherwise resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Tronox LTD)
Additional Amounts. If a Guarantor (a) All payments that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made Issuer makes under or with respect to its Guarantee the 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 (hereinafter collectively, “Taxes”) imposed or levied on such payments by or on behalf of any jurisdiction (other than the government United States, any state thereof or the District of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction Columbia) in which such Guarantor the Issuer is organized, resident or doing business for tax purposes or any jurisdiction from or through which it (or its agents, including the Paying Agent) makes any payment under its Guarantee is made on the Notes or by or within any department, political subdivision or governmental authority of or in any of the foregoing having power to tax (each each, a “Relevant Taxing Jurisdiction”), such Guarantor unless the Issuer 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 of law. If the Issuer or other applicable withholding agent is 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, the Issuer shall pay such additional amounts (“Additional Amounts”) as may be necessary so to ensure that the net amount received by each beneficial owner of the Holders (including Additional Amounts) Notes after such withholding or deduction shall (including any withholding or deduction in respect of any Additional Amounts) will not be less than the amount the Holders beneficial owner would have received if such Taxes had not been withheld or deducted; provided.
(b) The Issuer shall not, however, that the foregoing obligation to pay Additional Amounts does not apply to in respect or on account of:
(ai) any Taxes, to the extent such Taxes that would not have been so are imposed but for or levied by a Relevant Taxing Jurisdiction by reason of the existence of any Holder’s or beneficial owner’s 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 with such Relevant Taxing Jurisdiction (other than the mere receipt, ownership, holding or disposition of Notes, or by reason of the receipt of such payment any payments in respect of any Notes, or the ownership exercise or holding enforcement of rights under any Notes);
(ii) any Taxes to the extent such Taxes are imposed or withheld by reason of the Notes outside failure of the jurisdiction Holder or beneficial owner of organization Notes, following the Issuer’s written request addressed to the Holder or incorporation beneficial owner, to comply with any certification, identification, information or other reporting requirements (to the extent such holder or beneficial owner is legally eligible to 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 Guarantorrate of deduction or withholding of, such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction); or ;
(biii) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts Taxes;
(1iv) if the payment could have been made without such any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes;
(v) any Tax imposed on or with respect to any payment by the Issuer to the Holder if such Holder is a fiduciary or partnership or Person other than the beneficiary sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payment had such beneficial owner been the holder of such Note;
(vi) 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 presenting the relevant Notes to another paying agent in a member state of the payment had presented European Union;
(vii) any Taxes, to the Notes extent such Taxes were imposed as a result of the presentation of a Note for payment within (where presentation is required) more than 30 days after the date on which such relevant payment or such Notes became due and payable or is first made available to the date on which payment thereof is duly provided for, whichever is later Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Notes 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 Code as of the Issue Date (or any amended or successor version that is 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 1471(b)(1) of the Code as of the Issue Date (or any amended or successor version described above), and including (for the avoidance of doubt) any intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the foregoing; or
(ix) any combination of the foregoing.
(c) If the Issuer is the applicable withholding agent, the Issuer shall (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority 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 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 will be promptly thereafter), the Issuer shall deliver to the Trustee, with a copy to the Paying Agent, an Officer’s Certificate stating 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 Paying Agent to pay such Additional Amounts to the Holders on the payment date. The 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 Issuer 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. Such Additional Amounts may be paid by the Issuer, at its option, in the form of cash or Additional Notes. To the extent that the Issuer or any applicable withholding agent is required by law or by the interpretation or administration thereof to make any deduction or withholding from any payment of interest on the Notes or any payment of an Additional Amount which, in either case, is made through the issuance of Additional Notes, the foregoing provisions shall apply with respect to such withholding or deduction requirement, mutatis mutandis. In addition, the Issuer 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 other document or instrument referred to thereunder, or (2ii) the receipt of any payments under or with respect to, or enforcement of, the Notes. Upon written request, the Issuer will furnish to the Trustee or the Principal Paying Agent or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by the Issuer of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02, in such form as provided in the normal course by the taxing authority imposing such Taxes. If, notwithstanding the efforts of the Issuer to obtain such receipts, the same are not obtainable, the Issuer will provide the Trustee or such Holder with other evidence reasonably satisfactory to the Trustee or holder of such payments by the Issuer. If requested by the Trustee or the Principal Paying Agent, the Issuer will provide to the Trustee or the Principal Paying Agent, as the case may be, such information as may be reasonably available to the Issuer (and not otherwise in the possession of the Trustee or the Principal Paying Agent, as applicable) 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 of (or principal, premium, if any, on) or interest on such Notes to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, to the extent that a beneficiary amount payable under or settlor with respect to any Note, 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 of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing reference includes the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Amounts, if applicable.
(f) This Section shall 4.12 will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized organized, resident or doing business for tax purposes or any jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on the Notes and any department, political subdivision or taxing governmental authority of or agency thereof or thereinin any of the foregoing having the power to tax.
Appears in 1 contract
Sources: Indenture (Ardagh Group S.A.)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary (a) All payments made under or is a Puerto Rican corporation with respect to the Notes or the Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or other governmental charges and any interest, penalties and other liabilities with respect thereto (collectively, “Taxes”), unless the withholding or deduction of such Taxes is required by applicable law or by the relevant taxing authority’s interpretation or administration thereof. If any withholding or deduction for or on account of any Taxes imposed or levied by or on behalf of any jurisdiction in which the Issuer or the relevant Guarantor is organized, engaged in business or resident for tax purposes, or from or through which payment under or with respect to the Notes or the Guarantees is made by or on behalf of the Issuer, or any political subdivision or authority thereof or therein having the power to withhold or deduct tax (each, a “Relevant Taxing Jurisdiction”), will at any amount time be required to be made from any payment made under or with respect to its Guarantee for the Notes or on account of any present the Guarantees, the Issuer or future taxthe relevant Guarantor, dutyas the case may be, 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 government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”), such Guarantor shall will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each Holder of the Holders (including Additional Amounts) Notes after such withholding or deduction shall not be less than (including any withholding or deduction attributable to Additional Amounts) will equal the amount the Holders that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided.
(b) Notwithstanding Section 4.22(a) hereof, however, that neither the foregoing obligation to Issuer nor a Guarantor will pay Additional Amounts does not apply to a Holder of any Note in respect or on account of:
(a1) any Taxes that would not have been imposed or levied by a Relevant Taxing Jurisdiction but for the Holder’s present or former connection with such Relevant Taxing Jurisdiction (or a present or former connection between the Relevant Taxing Jurisdiction and a fiduciary, settlor, beneficiary, member or shareholder of such Holder if such Holder is an estate, a trust, partnership, limited liability company or a corporation), including, but not limited to, citizenship, nationality, residence, domicile or existence of a business, permanent establishment, dependent agent, place of business or place of management present or deemed present within the Relevant Taxing Jurisdiction, other than the mere receipt or holding of any Note or Guarantee or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under such Note, such Guarantee or this Indenture;
(2) any Taxes that are imposed or withheld by reason of the failure of the Holder or beneficial owner of any Note, to timely comply with a written request of the Issuer, addressed to the Holder at least 60 calendar days prior to the relevant date on which a payment under the Notes is due and payable, to comply (to the extent it is legally entitled to) with any certification, identification, information or other reporting requirement concerning nationality, residence, identity or connection with the Relevant Taxing Jurisdiction imposed by statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to an exemption from, or a reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(3) any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(4) any Tax that is payable other than by deduction or withholding from payments made under or with respect to any Note or Guarantee;
(5) any Tax that would not have been so imposed but for the existence presentation (where presentation is required in order to receive payment) by the Holder or beneficial owner 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 (other than the mere receipt of such payment or the ownership or holding of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Notes Note for payment within on a date more than 30 days after the date on which such payment or such Notes became becomes due and payable or the date on which payment thereof is duly provided for, whichever is later (occurs later, except to the extent that the Holder or beneficial owner would have been entitled to such Additional Amounts had on presenting the Notes been presented same for payment on any day (including the last day of day) within such 30-day period);
(6) 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 November 26 and 27, 2000 or any law implementing or complying with, or introduced in order to conform to, any such Directive;
(27) any Tax that is required to be withheld or deducted from a payment made to a Holder who would have been able to avoid such withholding or deduction by presenting a Note for a payment (where presentation is required) to another available paying agent in a member state of the European Union (unless such Notes could not have been presented for payment elsewhere);
(8) any Tax that is imposed on or with respect to any payment of principal of (or premium, if any, on) or interest on such Notes made to any Holder who is a fiduciary or partnership or any person other than an entity that is not 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 of such NotesNote; or
(9) any withholding Tax imposed by the United States or a political subdivision thereof. Upon requestIn addition, Additional Amounts will not be payable with respect to any Taxes that are imposed in respect or on account of any combination of the above items (1) through (9). No Additional Amounts will be required to be paid for any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA.
(c) The Issuer shall or the relevant Guarantor will make or cause to be made such withholding or deduction of Taxes as required by, and remit the full amount of any Taxes so deducted or withheld to the relevant taxing authority in accordance with, all applicable laws. The Issuer will provide the Trustee with official and, upon request, make available to the Holders, within 30 days after the date on which the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Issuer or relevant Guarantor or if, notwithstanding the Issuer’s or relevant Guarantor’s reasonable efforts to obtain such receipts, the same are not obtainable, other documentation evidence of such payment reasonably satisfactory to the Trustee.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or the Guarantees is due and payable, if the Issuer or a Guarantor will be obliged 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 the Guarantees is due and payable, in which case delivery of the Officers’ Certificate described below will be made promptly thereafter), the Issuer or the relevant Guarantor will deliver to the Trustee evidencing an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable on the payment date. The Officers’ Certificate must also set forth any other information necessary to enable the Paying Agent to pay Additional Amounts on the relevant payment date. The Trustee will be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary.
(e) In addition, the Issuer and the Guarantors will pay and (without duplication) indemnify the Holders for any present or future stamp, issue, registration, transfer, documentation, court, excise, property or other similar Taxes imposed or levied by any Relevant Taxing Jurisdiction in respect of the execution, delivery, registration, enforcement, redemption or retirement of, or the receipt of any Payment under or with respect to, the Notes, this Indenture or the Guarantees, or any other document or instrument referred to thereunder (limited, solely in the case of Taxes with respect to which Additional Amounts are paid. The obligations the receipt of any Payment, to any such taxes other than those imposed under FATCA or described under this Section shall (a) through (c) and (e) through (g) and any combination of any of the foregoing.
(f) The foregoing provisions will survive any termination, defeasance or discharge of this Indenture (and shall any transfer of a Holder or beneficial owner of its Notes) and will apply mutatis mutandis to any jurisdiction in which any Surviving Entity (as defined below) or successor Person to the Issuer or a Guarantor is organized organized, engaged in business or resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
(g) Whenever in this Indenture there is mentioned, in any context, the payment of principal (and premium, if any), a redemption price, interest or any other amount payable under or with respect to any Note (including payments thereof made pursuant to any Guarantee), such mention will be deemed to include mention of the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 1 contract
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or All payments made by the interpretation or administration thereof to withhold or deduct any amount from any payment made Company under or with respect to its Guarantee the Securities 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 government of the jurisdiction of organization or incorporation of such Guarantor Cayman Islands or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor the Company is organized or is otherwise resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “"Relevant Taxing Jurisdiction”"), such Guarantor unless the Company is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If any deduction or withholding for or on account of Taxes imposed by a Relevant Taxing Jurisdiction shall at any time be required on any payment made under or with respect to the Securities, the Company shall pay such additional amounts (“"Additional Amounts”") as may be necessary so to ensure that the net amount received by each Holder or the Holders (including Additional Amounts) Trustee, as the case may be, after such withholding or deduction shall not be less than will equal the amount such Holder or the Holders Trustee, as the case may be, would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay no such Additional Amounts does not apply to will be payable in respect of (a1) 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, 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 of the Notes outside of the jurisdiction Cayman Islands of organization such Security but including, without limitation, such relevant Holder (or incorporation of the Guarantorsuch 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 a trade or business therein or having or having had a permanent establishment therein); or (b2) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; (3) any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of the Security to comply with a request (x) to provide information, documents or other evidence concerning the nationality, residence or identity of the Holder or such beneficial owner or (y) to make and deliver any declaration or other similar claim (other than a claim for refund of a tax, assessment or other governmental charge withheld by the Company) or satisfy any information or reporting requirements, which, in the case of (x) or (y), is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge; (4) any tax, assessment or other governmental charge that is payable otherwise than by withholding from payment of principal of, premium, if any, or interest on such Security; or (5) any tax, assessment or governmental charge that would not have been imposed but for the presentation of a Security for payment in the Cayman Islands or any political subdivision thereof or therein, unless such Security could not have been presented elsewhere, nor shall will such Guarantor be required to pay Additional Amounts be payable (1x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Notes Security for payment within 30 days after the date on which such payment or such Notes Security 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 holder would have been entitled to Additional Amounts had the Notes Security been presented on the last day of such 30-day period), (y) if, at the election of the relevant Holder, the payment of principal of (or premium, if any, on) or interest on such Security could have been made through another paying agent without such deduction or withholding, or (2z) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes Security to any Holder who is a fiduciary or partnership or limited liability company that is treated as a partnership for U.S. federal income tax purposes or any person 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 that is treated as a partnership for U.S. federal income tax purposes 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 holder of such NotesSecurity. Upon request, the Issuer shall Company will provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. Whenever in this Indenture there is mentioned, in any context:
(1) the payment of principal;
(2) purchase prices in connection with a purchase of Securities;
(3) interest; or
(4) any other amount payable on or with respect to any of the Securities, such reference shall be deemed to include payment of Additional Amounts as described under this Section 3.16 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company shall pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies and other duties (including interest and penalties) that arise in any jurisdiction from the execution, delivery, enforcement or registration of the Securities, this Indenture or any other document or instrument in relation thereof, or the receipt of any payments with respect to the Securities, excluding such taxes, charges or similar levies imposed by any jurisdiction outside of the Cayman Islands or the United States (or any political subdivision or taxing authority of either jurisdiction), the jurisdiction of incorporation of any successor of the Company, any jurisdiction through which payment is made or in which a paying agent is located or any jurisdiction in which the Company is organized or engaged in business for tax purposes, and the Company will agree to indemnify the Holders for any such taxes paid by such Holders. The obligations described under this Section shall 3.16 will survive any termination, defeasance or discharge of this Indenture and shall will apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer Company is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Triton Energy LTD)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment Any payments made under or with respect to its Guarantee the Notes will 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 (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or on behalf of the government Mexico or of any subdivision thereof or the jurisdiction of organization or incorporation of such Guarantor any successor to the Company (each, a “Successor Jurisdiction”) or any political subdivision or by any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a hereinafter “Relevant Taxing JurisdictionTaxes”), such Guarantor shall unless the Company is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If the Company 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, the Company will (i) pay such additional amounts amounts, subject to the exceptions listed below, (“Additional Amounts”) as may be necessary necessary, so that the net amount received by the Holders each Holder of Notes (including Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders such Holder would have received if such Taxes had not been withheld or deducted; provided, however(ii) deduct or withhold such Taxes and (iii) remit the full amount so deducted or withheld to the relevant taxing or other authority. Notwithstanding the foregoing, that the foregoing obligation to pay no such Additional Amounts does not apply to shall be payable with respect to:
(a) any Taxes that would not have been so which are imposed but for on, or deducted or withheld from, payments made to the Holder or beneficial owner of a Note by reason of the existence of any present or former connection between the relevant Holder or beneficial owner of the Note (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over the relevant Holderover, such Holder or beneficial owner, if the relevant such Holder or beneficial owner is an estate, nominee, trust or corporationpartnership) and the Relevant Taxing Mexico (or any political subdivision or territory or possession thereof or area subject to its jurisdiction) or any Successor Jurisdiction (other than including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) (i) being or having been a citizen or resident thereof, (ii) maintaining or having maintained an office, permanent establishment, fixed base or branch therein, or (iii) being or having been present, or engaged in trade or business therein), except for a connection arising from the mere ownership of, or mere receipt of payment under, such payment Note or the ownership mere exercise of rights under such Note or holding of the Notes outside of Indenture (personally or through the jurisdiction of organization or incorporation of the GuarantorTrustee); or ;
(b) any estate, inheritance, gift, sales, excisestamp, transfer, personal property tax or similar taxTax, assessment or governmental charge; nor ;
(c) any Taxes that are imposed on, or withheld or deducted from, payments made to the Holder or beneficial owner of a Note to the extent such Taxes would not have been so imposed, deducted or withheld but for the failure by such Holder or beneficial owner of such Note to timely comply with any certification, identification, information, documentation, declaration or other reporting requirement if (i) such compliance is required or imposed by a statute, treaty, regulation, ruling or administrative practice as a precondition to exemption from, or reduction in the rate of, the imposition, withholding or deduction of any Taxes, and (ii) at least 60 days prior to (A) the first payment date with respect to which the Company shall apply this clause (c) and (B) in the event of a change in such Guarantor certification, identification, documentation, declaration or other reporting requirement, the first payment date subsequent to such change, the Company shall have notified the Trustee in writing, that such Holders or beneficial owners of the Notes will be required to pay Additional Amounts provide such information or documentation;
(1d) if any Taxes that are imposed or levied by reason of the payment could have been made without failure by the Holder or beneficial owner of such Note to timely comply (subject to the conditions set forth below) with a written request by or on behalf of the Company to provide information or other evidence concerning the nationality or registration with the Secretaría de Hacienda y Crédito Público (Ministry of Finance and Public Credit) of the Holder of such Note that is necessary to determine the appropriate rate of deduction or withholding if of Taxes applicable to such Holder; provided that at least 60 days prior to the beneficiary first payment date with respect to which the Company shall apply this clause (d), the Company shall have notified the Trustee in writing that such Holders of Notes will be required to provide such information, documentation or other evidence.
(e) to or on behalf of a Holder or beneficial owner of a Note in respect of Taxes that would not have been imposed but for the payment had presented the Notes presentation by such Holder or beneficial owner for payment within on a date more than 30 days after the date on which such payment or such Notes became due and payable or the date on which payment thereof is duly provided forfor and notice thereof given to Holders, whichever is later (occurs later, except to the extent that the Holder or beneficial owner of such Note would have been entitled to Additional Amounts had the Notes been presented in respect of such Taxes on the last day of presenting such Note for payment on any date during such 30-day period), ;
(f) any Taxes that are payable other than by deduction or (2) with respect to any payment withholding from payments of principal of of, (or premium, if any, on) or interest on, the Notes;
(g) any tax, duty, assessment or other governmental charge imposed on such Notes to any a Holder who that is a partnership or a fiduciary or partnership or any person other than the sole beneficial owner of such payment, but only to the extent that a any beneficial owner or member of the partnership or beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment fiduciary would not have been entitled to the payment of Additional Amounts had the beneficial owner, member, beneficiary or settlor directly been the holder of such beneficiaryNote; or
(h) any combination of (a), settlor(b), member (c), (d), (e), (f) or (g) above (the Taxes described in clauses (a) through (g) for which no Additional Amounts are payable, are hereinafter referred to as “Excluded Taxes”). Notwithstanding the foregoing, the limitations on the Company’s obligation to pay Additional Amounts set forth in clause (c) and (d) above shall not apply if (i) the provision of information, documentation or other evidence described in such clause (c) or (d) would be materially more onerous, in procedure or in the substance of information disclosed, to a Holder or beneficial owner been of a Note (taking into account any relevant differences between US and Mexican law (or the actual law of any applicable Successor Jurisdiction), regulation or administrative practice) than comparable information or other reporting requirements imposed under US tax law (including the United States—Mexico Income Tax Treaty), regulation and administrative practice (such as IRS Forms 1001, W-8 and W-9) and such Holder or beneficial owner shall have so certified to the Company or (ii) Rule 3.25.15 issued by the Ministry of Finance and Public Credit on May 30, 2002 or a substantially similar successor of such Notesrule is in effect, unless
(a) the provision of the information, documentation or other evidence described in clause (c) or (d) is expressly required by statute, regulation, ruling or administrative practice in order to apply Rule 3.25.15 (or a substantially similar successor of such rule), the Company cannot obtain such information, documentation or other evidence on its own through reasonable diligence and the Company otherwise would meet the requirements for application of Rule 3.25.15 (or such successor of such rule) or (b) in the case of a holder or beneficial owner of a Note that is a pension fund or other tax-exempt organization, payments to such holder or beneficial owner would be subject to Taxes at a rate less than that provided by Rule 3.25.15 if the information, documentation or other evidence required under clause (c) or (d) above were provided. Upon In addition, clause (c) and (d) above shall not be construed to require that a non-Mexican pension or retirement fund or other holder or beneficial owner of a Note register with the Ministry of Finance and Public Credit of Mexico for the purpose of establishing eligibility for an exemption from or reduction of Taxes. The Company will, upon written request, the Issuer shall provide the Trustee and the Holders with official receipts a duly certified or other documentation satisfactory to the Trustee evidencing authenticated copy of an original receipt of the payment of Taxes which the Taxes Company has withheld or deducted in respect of any payments made under or with respect to which the Notes. In the event that Additional Amounts actually paid with respect to any Notes are paidbased on Taxes in excess of the appropriate Taxes applicable to the holder or beneficial owner of such Notes and, as a result thereof, such holder or beneficial owner is entitled to make a claim for a refund of such excess, or credit such excess against any tax imposed by Mexico or any applicable Successor Jurisdiction (or any tax of any political subdivision thereof), then, to the extent it is able to do so without jeopardizing its entitlement to such refund or credit, such holder or beneficial owner shall, by accepting Notes, be deemed to have assigned and transferred all right, title and interest to any claim for a refund or credit of such excess to the Company. The obligations described By making such assignment or transfer, the holder or beneficial owner makes no representation or warranty that the Company will be entitled to receive such refund or credit and incurs no other obligation with respect thereto (including executing or delivering any documents and paying any costs or expenses of the Company relating to obtaining such refund or credit). Nothing contained in this paragraph shall interfere with the right of each holder or beneficial owner of Notes to arrange its tax affairs in whatever manner it deems appropriate nor oblige any holder or beneficial owner to claim any refund or credit or to disclose any information relating to its tax affairs or any computation in respect thereof or to do anything that would prejudice its ability to benefit from any other credits, reliefs, remissions or repayments to which it may be entitled. At least 30 days prior to each date on which any payment under this Section shall survive any terminationor with respect to the Notes is due and payable, defeasance or discharge if the Company will be obligated to pay Additional Amounts with respect to such payment (other than Additional Amounts payable on the basis of the facts and laws existing on the date of the Prospectus), the Company will deliver to the relevant Trustee a certificate signed by a duly authorized officer 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 relevant Trustee to pay such Additional Amounts to Holders on the payment date. Whenever in this Indenture there is mentioned, in any context, the payment of principal (and shall apply mutatis mutandis premium, if any), Redemption Price, interest or any other amount payable under or with respect to any jurisdiction in which any successor Person Note, such mention shall be deemed to include mention of the payment of Additional Amounts to the Issuer is organized extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. In addition, the Company will pay any stamp, issue, registration, documentary or other similar taxes and other duties (including interest and penalties) (i) payable in Mexico (or any political subdivision thereof) in respect of the creation, issue and offering of the Notes, and (ii) payable in Mexico or taxing authority any Successor Jurisdiction (or agency thereof any political subdivision thereof) in respect of the subsequent redemption or thereinretirement of the Notes (other than, in the case of any subsequent redemption or retirement, Excluded Taxes).
Appears in 1 contract
Sources: Indenture (Alestra)
Additional Amounts. If a (a) All payments made by any Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made under or with respect to its any Guarantee 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) (hereinafter “Taxes”) Taxes imposed or levied by or on behalf of the government of the jurisdiction of organization any Canadian Taxing Authority or incorporation of United States Taxing Authority, unless such Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If any political subdivision Guarantor is so required to withhold or deduct any authority amount of interest for or agency therein on account of Taxes imposed or thereof having power to tax, levied by or within on behalf of any other jurisdiction in which such Guarantor is organized, resident or doing business for tax purposes purposes, or any jurisdiction from or through which such Guarantor (or its agents) makes any payment under its any Guarantee is made or any Taxing Authority thereof (each a “Relevant Taxing Jurisdiction”), from any payment made under or with respect to any Guarantee, any such Guarantor shall Guarantor, as applicable, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received in respect of such payment by each Holder or Beneficial Holder, as the Holders (including Additional Amounts) case may be, after such withholding or deduction shall (including withholding or deduction attributable to Additional Amounts payable hereunder) will not be less than the amount the Holders Holder or Beneficial Holder, as the case may be, would have received if such Taxes had not been withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment made to a Holder or Beneficial Holder, as applicable:
(i) which is subject to such Taxes by reason of any connection between Canada and such holder who is not a resident of Canada for purposes of the Tax Act, other than any connection resulting solely from the acquisition, ownership, or disposition of Notes, the receipt of payments thereunder and/or the exercise or enforcement of rights under any Notes or any Guarantee;
(ii) which is subject to such Taxes by reason of any connection between such holder and the United States or any states political subdivision thereof or authority thereof other than any connection resulting solely from the acquisition, ownership, or disposition of Notes, the receipt of payments thereunder and/or the exercise or enforcement of rights under any Notes or any Guarantee;
(iii) which failed to duly and timely comply with a timely request of the relevant Guarantor to provide information, documents, certification or other evidence concerning such holder’s nationality, residence, entitlement to treaty benefits, identity or connection with any jurisdiction or any political subdivision or authority thereof, 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, as the case may be, but for this clause (iii);
(iv) which is a fiduciary, a partnership or not the beneficial owner of any payment on a Note, if and to the extent that, as a result of an applicable tax treaty, no Additional Amounts 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);
(v) U.S. federal withholding Taxes imposed on amounts payable to or for the account of a Holder or the Beneficial Holder, as the case may be, with respect to an applicable interest in the Notes pursuant to a law in effect on the date on which (i) such Holder or the Beneficial Holder, as the case may be, acquires such interest in the Notes or (ii) such Holder or the Beneficial Holder, as the case may be, changes its office location, except in each case to the extent that amounts with respect to such Taxes were payable either to such Holder’s assignor immediately before such Holder or the Beneficial Holder, as the case may be, became a party hereto or to such Holder immediately before it changed its office location;
(vi) to the extent that the Taxes required to be withheld or deducted are imposed pursuant to sections 1471 through 1474 of the United States Internal Revenue Code of 1986, as amended (and any amended or successor version that is substantially comparable), and any regulations or other official guidance thereunder or agreements (including any intergovernmental agreements or any laws, rules or practices implementing such intergovernmental agreements) entered into in connection therewith;
(vii) for any Canadian withholding Taxes imposed on a payment by or on account of any obligation of the relevant Guarantor hereunder by reason of the Holder or Beneficial Holder, as the case may be, (i) not dealing at arm’s length (for purposes of the Tax Act) with the payer of such amount or (ii) being, or not dealing at arm’s length (for purposes of the Tax Act) with a specified shareholder (as defined in subsection 18(5) of the Tax Act) of the payer of such amount;
(viii) for or on account of any Tax that is payable otherwise than by withholding from payment with respect to a Guarantee (other than Taxes payable pursuant to section 803 of the regulations under the Tax Act); or
(ix) any combination of the foregoing clauses of this proviso.
(b) Such Guarantor will also (a) make such withholding or deduction and, (b) remit the full amount deducted or withheld to the relevant Taxing Authority in accordance with applicable law. Such Guarantor will furnish to the Holders, within 30 days after the date the payment of any Taxes is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by such Guarantor.
(c) At least 30 days prior to each date on which any payment under or with respect to the any Guarantee is due and payable, if any Guarantor is aware that it will be obligated to pay Additional Amounts with respect to such payment, such Guarantor will deliver to the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to holders on the payment date. Whenever in this Indenture there is mentioned, in any context, the payment of principal (and premium, if any), interest or any other amount payable under or with respect to any Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(d) The Guarantors, 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 Relevant Taxing Jurisdiction and payable by such Holder or Beneficial Holder in connection with payments made under or with respect to the Notes held by such Holder or Beneficial Holder or under any Guarantee (including, for greater clarity, any Taxes payable under section 803 of the regulations under the Tax Act); and (ii) any Taxes levied or imposed with respect to any indemnification or reimbursement under the foregoing clause (i) or this clause (ii), so that the net amount received by such Holder or Beneficial Holder after such indemnification or reimbursement will not be less than the net amount such Holder or Beneficial Holder would have received if the Taxes giving rise to the indemnification or reimbursement described in clauses (i) and/or (ii) had not been imposed; provided, however, that the foregoing obligation indemnification or reimbursement obligations provided for in this paragraph shall not extend to pay Additional Amounts does not apply to (a) any Taxes that for which the applicable Holder or Beneficial Holder would not have been so imposed but for the existence eligible to receive payment of any present or former connection between the relevant Holder Additional Amounts hereunder by virtue of clauses (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over the relevant Holder, i) through (ix) above 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 of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be payor had been required to pay Additional Amounts (1) if the payment could have been made without withhold from such deduction payments or withholding if the beneficiary of the payment had presented the Notes for payment within 30 days after the date on which such payment 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 that the such Holder would have been entitled to or Beneficial Holder received Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder 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 of such Notes. Upon requestpayments.
(e) In addition, the Issuer shall provide and the Trustee with official receipts Guarantors will pay any stamp, issue, registration, court, documentation, excise or other documentation satisfactory 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 Notes, any 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 Trustee evidencing Notes or any Guarantee or as a result of, or in connection with, the payment enforcement of the Taxes with respect to which Additional Amounts are paid. Notes, any Guarantee and/or any other such document or instrument.
(f) The obligations described under this Section shall 3.12 will survive any termination, defeasance or discharge of this Indenture and shall will apply mutatis mutandis to any successor Person and to any jurisdiction in which any such successor Person to the Issuer is organized or is otherwise resident or doing business for tax purposes or any political subdivision jurisdiction from or taxing authority through which payment is made by such successor or agency thereof or thereinits respective agents.
Appears in 1 contract
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment (a) All payments made under or with respect to its Guarantee the Notes or the Note Guarantees shall 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 (including related penalties, interest and other liabilities related theretoliabilities) (hereinafter hereinafter, “Taxes”) imposed or levied by or on behalf of (1) the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to taxUnited Kingdom, or within (2) the United States, (3) any other jurisdiction in which such the Issuer or any Note Guarantor is organized or is otherwise resident for tax purposes or purposes, (4) any jurisdiction from or through which payment under its Guarantee is made and (each 5) any political subdivision or governmental authority or agency of or in any of the foregoing having the power to tax (each, a “Relevant Taxing Jurisdiction”), such unless the Issuer or any Note Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(b) If the Issuer or a 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 or the Note Guarantees, the Issuer or the applicable Note Guarantor shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders and beneficial owners (including Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders and beneficial owners would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to to:
(a1) 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 over, the relevant HolderHolder or beneficial owner, if the relevant Holder or beneficial owner is an estate, nominee, trust trust, partnership or corporation) and the Relevant Taxing Jurisdiction (other than the mere receipt of such payment or the ownership or holding of the Notes outside of the jurisdiction of organization or incorporation of the Guarantorsuch Note); or ;
(b2) any estate, inheritance, gift, sales, excise, transfer, personal property tax Tax or similar taxTax;
(3) any Taxes which are payable otherwise than by withholding from payments of (or in respect of) principal of, assessment or governmental charge; nor shall any premium or interest on, the Notes;
(4) any Taxes that are imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of a Note with a request by the Issuer addressed to the Holder or such Guarantor be beneficial owner (A) to provide information concerning the nationality, residence, identity or present or former connection with a Relevant Taxing Jurisdiction of the Holder or such beneficial owner or (B) to make any declaration or other similar claim or satisfy any certification, information or reporting requirement, which, in the case of (A) or (B), is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such Tax;
(5) any withholding or deduction imposed on a payment to an individual required to pay Additional Amounts be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings income or any law implementing or introduced in order to conform to, such Directive;
(6) any combination of items (1), (2), (3), (4) if the payment could and (5) above;
(7) any Taxes that would not have been made without such deduction so imposed, withheld or withholding deducted if the beneficiary of the payment had presented the Notes Note for payment within 30 days after the date on which such payment or such Notes 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 such beneficiary would have been entitled to Additional Amounts had the Notes Note been presented on the last day of such the 30-day period), ;
(8) any payment under or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes a Note to any Holder who is a fiduciary or partnership or any person 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 of such Notes. Upon requestNote; or
(9) any withholding or deduction that is imposed on a Note presented for payments by or on behalf of a Holder or beneficial owner who would be able to avoid a withholding or deduction by presenting the relevant Note to another Paying Agent in a Member State.
(c) If the Issuer or any Note Guarantor will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or the relevant Note Guarantee, as applicable, the Issuer or such Note Guarantor, as applicable, will deliver to the Trustee at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Issuer or the Note Guarantor, as applicable, shall notify the Trustee promptly thereafter but in no event later than two Business Days prior to the date of payment) notice of payment in the form of an Officer’s Certificate. In either circumstance, the Officer’s Certificate must state that Additional Amounts will be payable and the amount so payable. The Officer’s Certificate must also set forth any other information necessary to enable the Paying Agent to pay Additional Amounts to Holders and beneficial owners on the relevant payment date.
(d) The Issuer or any Note Guarantor will (i) make such 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 provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. Certificated copies of such receipts and such other documentation shall be made available to Holders upon request and will be made available at the offices of the Paying Agent if the Notes are then listed on the Luxembourg Stock Exchange. The obligations described Issuer will attach to such copies an Officer’s Certificate stating (x) that the amount of withholding Taxes evidenced by such copies was paid in connection with any payment made under or with respect to the Notes or any Note Guarantee and (y) the amount of such withholding Taxes paid per $1,000 of Notes.
(e) Whenever in this Indenture there is mentioned, in any context, the payment of principal, purchase prices in connection with a purchase of Notes, interest, or any other amount payable on or with respect to any of the Notes or any Note Guarantee, that reference shall be deemed to include payment of Additional Amounts provided for in this section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The Issuer or a Note Guarantor will 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 the Notes, the Note Guarantees, this Indenture or any other related document or instrument, or the receipt of any payments with respect to the Notes or the Note Guarantees, excluding taxes, charges or similar levies imposed by any jurisdiction that is not a Relevant Taxing Jurisdiction, and the Issuer will agree to indemnify the Holders or the Trustee for any such taxes paid by the Holders or the Trustee.
(g) The preceding provisions of this Section shall 2.13 will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer or any Note Guarantor is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Virgin Media Inc.)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or All payments made by the interpretation Company on the Notes will be made without withholding or administration thereof to withhold or deduct any amount from any payment made under or with respect to its Guarantee for deduction for, or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge present
(including penalties, interest and other liabilities related theretoa) (hereinafter “Taxes”) imposed or levied any payments on a Note held by or on behalf of the government a Holder or beneficial owner who is liable for such Taxes in respect of such Note by reason of the jurisdiction of organization Holder or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof beneficial owner having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”), such Guarantor shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders (including Additional Amounts) after such withholding or deduction shall not be less than the amount the Holders would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to (a) any Taxes that would not have been so imposed but for the existence of any present or former some 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 with the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) other than by the mere holding of such Note or enforcement of rights thereunder or the receipt of such payment or the ownership or holding of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or payments in respect thereof;
(b) any estateTaxes that are imposed or withheld as a result of a change in law after the Issue Date where such withholding or imposition is by reason of the failure of the Holder or beneficial owner of the Note to comply with any request by the Company to provide information concerning the nationality, inheritance, gift, sales, excise, transfer, personal property tax residence or identity of such Holder or beneficial owner or to make any declaration or similar taxclaim or satisfy any information or reporting requirement, assessment which is required or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if the payment could have been made without such deduction imposed by a statute, treaty, regulation or withholding if the beneficiary administrative practice of the payment had Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such Taxes;
(c) except in the case of the winding up of the Company, any Note presented the Notes for payment within (where presentation is required) in the Relevant Taxing Jurisdiction; or
(d) any Note presented for payment (where presentation is required) more than 30 days after the date on which such relevant payment or such Notes became due and payable or the date on which is first made available for payment thereof is duly provided for, whichever is later (except to the extent that the Holder would have been entitled to Holder. Such Additional Amounts will also not be payable where, had the Notes been presented on the last day of such 30-day period), or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder 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 the Note been the Holder of the Note, he would not have been entitled to the payment of Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder by reason of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory clauses (a) to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein(d) inclusive above.
Appears in 1 contract
Sources: Indenture (Versatel Telecom Bv)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or All payments of principal and interest by the interpretation Company in respect of the Notes shall be made without withholding or administration thereof to withhold or deduct any amount from any payment made under or with respect to its Guarantee deduction for or on account of of, any present or future taxtaxes, dutyduties, levyassessments or governmental charges of whatever nature imposed, impostlevied, assessment collected, withheld or other governmental charge assessed by the United States (including penaltiescollectively, interest and other liabilities related thereto) (hereinafter “Taxes”) imposed ), unless such withholding or levied deduction is required by or on behalf law. If as a result of any change in law of the government United States after the Issue Date, the Company is compelled by law to so deduct or withhold such Taxes, the Company shall pay to Holders of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”), such Guarantor shall pay Notes such additional amounts (“Additional Amounts”) as may be is necessary so to ensure that the net amount amounts received by the Holders (including Additional Amounts) of such Notes after such withholding or deduction shall not be less than equal the amount the Holders respective amounts that would have received been receivable in respect of such Notes in the absence of such withholding or deduction, except that no such Additional Amounts shall be payable:
(i) to or on behalf of a Holder or beneficial owner of a Note if such Taxes had Holder or beneficial owner of a Note is not been withheld a resident of Japan that is entitled to the benefits of the income tax treaty between the United States and Japan;
(ii) to or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to (a) on behalf of a Holder or beneficial owner of a Note in respect of any Taxes Tax that would not have been so imposed withheld or deducted but for the existence of any present or former connection connection, including a permanent establishment, between the relevant Holder or beneficial owner of the Note (or, if the Holder or beneficial owner is an estate, nominee, trust, partnership or corporation, between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over over, the relevant Holder, if the relevant Holder is an estate, nominee, trust or corporationbeneficial owner) and the Relevant Taxing Jurisdiction (United States, other than the mere receipt of such payment or the mere holding or beneficial ownership of such Note or holding enforcement of rights thereunder;
(iii) to or on behalf of a Holder or beneficial owner of a Note in respect of any Tax that would not have been so withheld or deducted but for the Notes outside fact that the Holder presented (to the extent presentation is required) such Note for payment more than 30 days after the later of (x) the jurisdiction date on which such payment 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 having been so received, notice to that effect shall have been given to the Holders by the Trustee;
(iv) to or on behalf of organization a Holder or incorporation beneficial owner of the Guarantor); or (b) a Note in respect of any estate, inheritance, gift, value added, sales, use, excise, transfer, personal property tax or similar taxtaxes, duties, assessments or other governmental charges;
(v) to or on behalf of a Holder or beneficial owner of a Note in respect of any Tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if the payment could have been made without such other government charge payable other than by withholding or deduction or withholding if the beneficiary from payments of the payment had presented the Notes for payment within 30 days after the date on which such payment 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 that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period)principal of, or interest on, such Note;
(2vi) with to or on behalf of a Holder or beneficial owner of a Note in respect to of any payment to a holder of principal of (or premium, if any, on) or interest on such Notes to any Holder who a Note that is a fiduciary or partnership or any person Person other than the sole beneficial owner of such payment, payment or Note to the extent that such payment would be required by the laws of the United States to be included in the income for tax purposes of 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 who would not have been entitled to the Additional Amounts had it been the Holder of such beneficiary, settlor, member Note;
(vii) to or on behalf of a Holder or beneficial owner of a Note in respect of any Taxes that would not have been imposed but for of the actual failure by the Holder or the beneficial owner of the Note to comply with any certification, identification, information, documentation or other reporting requirement if such compliance is required by applicable law, regulation, administrative practice or an applicable treaty as a precondition to exemption from, or reduction in the rate of deduction or withholding of Taxes; or
(viii) in respect of any combination of (i) through (vii) above. All references to principal and interest in respect of the Notes shall be deemed also to refer to any Additional Amounts which may be payable as set forth in this Indenture or in the Notes. Upon request, the Issuer shall The Company will provide the Trustee with official receipts or other documentation reasonably satisfactory to the Trustee evidencing the payment of the Taxes any amounts deducted or withheld in accordance with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination4.06 promptly upon the Company’s payment thereof, defeasance or discharge and such copies of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person such documentation will be made available by the Trustee to the Issuer is organized or any political subdivision or taxing authority or agency thereof or thereinHolders upon written request to the Trustee.
Appears in 1 contract
Sources: Indenture (Evercore Partners Inc.)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary (a) All payments made by or is a Puerto Rican corporation is required by applicable law or by on behalf of the interpretation or administration thereof to withhold or deduct any amount from any payment made Company under or with respect to its Guarantee the Notes, or by or on behalf of any Guarantor that is resident for tax purposes or organized other than in the United States under or with respect to any Note 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 government of the jurisdiction Canada, any province or territory of organization or incorporation of such Guarantor Canada or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which the Company or any such Guarantor is organized, or is otherwise carrying on business in, or is otherwise resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each each, a “Relevant Taxing Jurisdiction”), unless such Person is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(b) If the Company or any Guarantor that is resident for tax purposes or organized other than in the United States (each such person, a “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 a Note Guarantee, such Payor shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders a Holder or beneficial owner of Notes (including Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders such Holder or 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 the foregoing obligation obligations to pay Additional Amounts does shall not apply to (a1) any Holder or beneficial owner of Notes with which the applicable Payor does not deal at arm’s length (within the meaning of the Income Tax Act (Canada)) at the time of the payment; or (2) 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 beneficial owner of Notes and the Relevant Taxing Jurisdiction including, for greater certainty and without limitation, being or having been a fiduciarycitizen, settlor, beneficiary, member resident or shareholder ofnational thereof, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust being or corporation) and having been present or 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 receipt of such payment or the acquisition, ownership or holding of such Note or a beneficial interest therein or the Notes outside enforcement of rights thereunder or the jurisdiction receipt of organization or incorporation of the Guarantorany payment in respect thereof); or (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts be paid (1a) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Notes Note for payment within 30 days after the date on which such payment or such Notes 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 or beneficial owner would have been entitled to Additional Amounts had the Notes Note been presented on the last day of such 30-day period), or ; (2b) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, to the extent that relating to Taxes imposed by reason of the Holder’s or beneficial owner’s failure to comply with any certification, documentation, information or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction if compliance is required by law, regulation, administrative practice or an applicable treaty as a beneficiary precondition to exemption from, or settlor with respect a reduction in the rate of deduction or withholding of, such Taxes to which 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 Holder or beneficial owner is entitled; (c) any tax assessment or other governmental charge which would have been avoided by such Holder by presenting the actual Holder relevant Note (if presentation is required); or (d) any combination of any of the above clauses (any such NotesTax in respect of which Additional Amounts are payable, an “Indemnified Tax”).
(c) The applicable Payor shall make any required withholding or deduction and remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. Upon request, the Issuer Company shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations .
(d) If a Payor is or will become obligated to pay Additional Amounts under or with respect to any payment made on its Note Guarantee, at least 30 days prior to the date of such payment, such Payor shall 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.
(e) 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 reference shall be deemed to include payment of Additional Amounts as described under this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The Company and the Guarantors shall indemnify and hold harmless a Holder of the 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 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, enforcement or registration of the Notes, the Note Guarantees, this Indenture or any other document or instrument in relation thereof, or the receipt of any payments with respect to the Notes or any Note Guarantees and the Company and the Guarantors shall indemnify the Holders for any such amounts (including penalties, interest and other liabilities related thereto) paid by such Holders.
(h) The obligations described in this Section 2.13 shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction jurisdiction, other than the United States, in which any successor Person to the Issuer Company or any Guarantor is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Banro Corp)
Additional Amounts. If
(a) All payments of principal of, Premium, if any, and interest on the Notes made by the Issuer pursuant to the Notes shall be made free and clear of, and without withholding or deduction for or on account of, any present or future Taxes imposed or levied by or on behalf of a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation Taxing Jurisdiction, unless the Issuer is required to withhold or deduct Taxes by applicable law or by the interpretation or administration thereof thereof. If the Issuer is required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to its Guarantee for or on account of any present or future taxthe Notes, 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 government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to taxIssuer shall pay, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”)cause to be paid, such Guarantor shall pay subject to certain exceptions and limitations set forth below, such additional amounts (the “Additional Amounts”) as may be necessary so that the net amount received by each holder (in respect of the Holders beneficial owner thereof) (including Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders such holder would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay no Additional Amounts will be payable with respect to a payment made to a holder or beneficial owner or to a third party on behalf of a holder or beneficial owner (an “Excluded Holder”) with respect to:
(i) any Tax imposed on, or deducted or withheld from, payments in respect of the Notes to a beneficial owner (A) by reason of it being a Person with whom the Issuer does not apply to deal at arm’s length for the purposes of the income tax laws of the Taxing Jurisdiction at the time of making such payment or (aB) any Taxes that would not have been so imposed but for by reason of the existence of any present or former connection (including, without limitation, carrying on business or having a permanent establishment or fixed base) between the relevant Holder such beneficial owner (or between a fiduciary, settlor, beneficiary, member member, shareholder or shareholder other equity owner of, or possessor of power over the relevant Holderover, such beneficial owner, if the relevant Holder such beneficial owner is an estate, nomineetrust, trust partnership, limited liability company, corporation or corporationother entity) and the Relevant Taxing Jurisdiction (including, without limitation, any Tax imposed on such beneficial owner’s net income) other than the mere receipt of such payment holding, or receiving payments under, or enforcing any rights in respect of, the ownership or holding of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or Notes;
(bii) any estate, inheritance, gift, sales, excise, transfer, stamp, excise or personal property tax Tax or any similar Tax;
(iii) any Tax imposed on, or deducted or withheld from, payments in respect of the Notes to a holder or beneficial owner as a result of the failure of such holder or beneficial owner (A) to duly and timely comply with any certification, identification, information, documentation, or similar taxreporting requirements concerning the nationality, assessment residence, entitlement to treaty benefits, identity or governmental charge; nor shall connection with the relevant Taxing Jurisdiction of such Guarantor be holder or beneficial owner or (B) to duly and timely make a declaration, claim or filing for exemption from or reduction in the rate of such Tax, if such compliance or the making of such declaration, claim or filing is required by statute, treaty, regulation or administrative pronouncement or practice, as a precondition to pay exemption from or reduction in the rate of such Tax;
(iv) any Tax imposed on, or deducted or withheld from, payments in respect of the Notes to a holder which is a fiduciary or partnership (including any entity or arrangement treated as a partnership by the relevant Taxing Jurisdiction) or to any person other than the sole beneficial owner of such payments to the extent that any beneficiary or settler with respect to such fiduciary, any partner or member of such partnership or such beneficial owner would not have been entitled to such Additional Amounts with respect to such payments had such beneficiary, settler, partner, member or beneficial owner received directly its beneficial or distributive share of such payments;
(1v) any Tax imposed on, or deducted or withheld from, payments in respect of the Notes to a holder or beneficial owner if the payment such payments could have been made without such imposition, deduction or withholding if the beneficiary of the payment such Tax had such Notes been presented the Notes for payment (where presentation is required) within 30 days after the date on which such payment 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 that the Holder such holder or beneficial owner would have been entitled to such Additional Amounts had the such Notes been presented on the last day of such 30-day period), or ;
(2vi) with respect any Tax required to be withheld by any Paying Agent from any payment of principal of (or premiumprincipal, if any, on) Premium or interest on the Notes if such Notes payment can be made without such withholding by at least one other Paying Agent;
(vii) any Taxes which are payable otherwise than by withholding from payment of principal, Premium or interest on the Notes; or
(viii) any combination of items (i) through (vii).
(b) If the Issuer is required to any Holder who is a fiduciary withhold 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 deduct Taxes by law 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 Notes. Upon requestinterpretation thereof, the Issuer shall provide (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law.
(c) The Issuer shall furnish the Trustee with official or holders, within 30 days after the date the payment of any Taxes is due pursuant to applicable law, certified copies of tax receipts or evidencing such payment by the Issuer or, if certified copies of tax receipts are not reasonably available to the Issuer, such other documentation evidencing such payment by the Issuer that is reasonably satisfactory to the Trustee evidencing Trustee. The Issuer shall indemnify each beneficial owner of Notes (other than an Excluded Holder) for the amount of (A) any Taxes (other than Taxes to the extent described in clauses (i) to (viii) above or in respect of a payment described in clauses (i) to (viii) above) so levied or imposed and paid by such beneficial owner as a result of the Taxes payments made under or with respect to which Additional Amounts are paid. The obligations described under this Section shall survive the Notes, and (B) any terminationcost or expense arising therefrom or with respect thereto, defeasance or discharge of this Indenture including interest and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.penalties ((A) and
Appears in 1 contract
Sources: Trust Indenture
Additional Amounts. If a Guarantor that is a Foreign Subsidiary All payments made by or is a Puerto Rican corporation is required by applicable law on behalf of the Issuers or by any of the interpretation or administration thereof to withhold or deduct any amount from any payment made Guarantors under or with respect to its the Notes or any Note Guarantee for will be made free and clear of and without withholding or deduction for, or on account of of, any present or future taxTaxes unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, dutyor on account of, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) any Taxes imposed or levied by or on behalf of (1) any jurisdiction in which the government of the jurisdiction of organization Issuers or incorporation of such any Guarantor (including any successor entity), is then incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which payment is made by or on behalf of the Issuers or any authority Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or agency any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”), will at any time be required to be made from any payments under or thereof having power with respect to taxthe Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium the Issuers or the relevant Guarantor, as applicable, will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each holder or beneficial owner of Notes after such withholding, deduction or imposition will equal the respective amounts of cash that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts will be payable with respect to:
(a) any Taxes, to the extent such Taxes would not have been imposed but for the Holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or within possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being a citizen or resident or national of, incorporated in the relevant Tax Jurisdiction in which such Taxes are imposed or having any other present or former connection with the relevant Tax Jurisdiction other than the acquisition or holding of such Notes, the exercise or enforcement of rights under such Note or the Indenture or under a Note Guarantee of a Guarantor or the receipt of payments in respect of such Note or a Note Guarantee of a Guarantor;
(b) 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 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);
(c) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(d) any Taxes withheld, deducted or imposed on a payment to an individual and that are 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 November 26 and 27, 2000 on the taxation of savings income, or any law implementing or complying with or introduced in order to conform to, such directive;
(e) any Note presented for payment (where presentation is required) by or on behalf of a Holder of Notes 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;
(f) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or with respect to any Note Guarantee of a Guarantor;
(g) 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 Issuers’ reasonable written request addressed to the Holder or beneficial owner at least 60 days before any such withholding or deduction would be payable to the holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, 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), but in each case, only to the extent the Holder or beneficial owner is legally entitled to provide such certification or documentation;
(h) any Taxes imposed or withheld by reason of the failure of the holder or beneficial owner of the Notes to comply with the requirements of Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “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 U.S. Treasury Regulations issued thereunder or any official interpretation thereof or any agreement entered into pursuant to Section 1471(b) of the Code;
(i) any withholding Tax imposed by the United States or a political subdivision thereof; or
(j) any combination of clauses (a) through (i) above. In addition to the foregoing, the Issuers and any Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or 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 jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the indenture, any Note Guarantee of a Guarantor or any other document referred to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Notes or any Note Guarantee of a Guarantor. If the Issuers or any Guarantor, as the case may be, becomes aware that it or they will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or any Note Guarantee of a Guarantor, the Issuers or the relevant Guarantor, as the case may be, will deliver to the Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Issuers or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officers’ Certificates must also set forth any other information reasonably necessary to enable the Paying Agents to pay Additional Amounts to holders on the relevant payment date. The Issuers or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officers’ Certificate as conclusive proof that such payments are necessary, and may conclusively presume that no payments are necessary unless and until it receives any such Officers’ Certificate. The Issuers or the relevant Guarantor will make all withholdings and deductions (within the time period and in the minimum amount) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuers or the relevant Guarantor will use their reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuers or the relevant Guarantor will furnish to the Trustee (or to a holder upon request), within 60 days after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Issuers or a Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity. Whenever in the Indenture or the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee of a Guarantor, 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. The above obligations will survive any termination, defeasance or discharge of the Indenture, any transfer by a holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which such any successor Person to the Issuers or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”), such Guarantor shall pay such additional amounts (“Additional Amounts”) as may be necessary so that on the net amount received by the Holders (including Additional Amounts) after such withholding or deduction shall not be less than the amount the Holders would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to (a) any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant Holder Notes (or between any Note Guarantee of 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 corporationGuarantor) and the Relevant Taxing Jurisdiction (other than the mere receipt of such payment any department or the ownership or holding of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if 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 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 that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder 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 of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Endo International PLC)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or (a) All payments made by the interpretation or administration thereof to withhold or deduct any amount from any payment made Company under or with respect to its Guarantee the Notes, or by any Guarantor pursuant to the Note Guarantees, shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levyl▇▇▇, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter collectively, “Taxes”) imposed or levied by or on behalf of the any government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or territory or possession of any government or authority or agency therein or thereof having the power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing JurisdictionAuthority”), unless the Company or such Guarantor is required to withhold or deduct Taxes under any law or by the interpretation, application or administration thereof. If, after the Issue Date, the Company or such Guarantor, as the case may be, 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 the Note Guarantees, as the case may be, the Company or such Guarantor, as the case may be, shall pay to each Holder of Notes that are outstanding on the date of the required payment, such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders such Holder (including the Additional Amounts) after such withholding or deduction shall not be less than the amount the Holders such Holder would have received if such Taxes had not been withheld or deducted; provided, however, provided that the foregoing obligation to pay no Additional Amounts shall be payable with respect to a payment made to a Holder or beneficial owner of the Notes (an “Excluded Holder”):
(i) with which the Company or such Guarantor does not apply deal at arm’s length (within the meaning of the Income Tax Act (Canada)) at the time of making such payment,
(ii) which is subject to such Taxes by reason of its being or having been connected with a jurisdiction imposing such tax otherwise than by the mere holding, use or ownership, or deemed holding, use or ownership, of the Notes or the receipt of payments thereunder, (as a matter of, for example, citizenship, nationality, residence, domicile, or existence of a business or permanent establishment, a dependent agent, a place of business or a place of management present or deemed present within the Taxing Authority),
(iii) which failed to duly and timely comply with a timely request of the Company to provide information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, entitlement to treaty benefits or identity, if and to the extent that (a) such Holder and/or beneficial owner was legally able to comply with such request and (b) due and timely compliance with such request is required by applicable law as a precondition to reduction or elimination of, and would have reduced or eliminated, any Taxes as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner but for this clause,
(iv) which is a fiduciary or a partnership or not the sole beneficial owner of the relevant Note, if and to the extent that any beneficiary or settlor with respect to such fiduciary, any partner with respect to such partnership or any beneficial owner of such Note (as the case may be) would not have been so imposed but for entitled to receive Additional Amounts with respect to the existence of any present or former connection between the relevant Holder (or between a fiduciarypayment in question had such beneficiary, settlor, beneficiary, member partner or shareholder of, or possessor of power over beneficial owner been the relevant Holder, if the relevant Holder is an estate, nominee, trust or corporation) and the Relevant Taxing Jurisdiction (other than the mere receipt sole beneficial owner of such payment or the ownership or holding Note,
(v) in respect of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or (b) any estate, gift, inheritance, gift, salesvalue added, excise, transfer, personal property tax intangible or similar tax, assessment ,
(vi) in respect of withholdings or governmental charge; nor shall such Guarantor be deductions imposed on a payment to an individual that are required to pay Additional Amounts be made pursuant to the European Union Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26 and 27, 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive,
(1vii) if and to the extent that such payment could have been made without such deduction or withholding if of such Taxes had the beneficiary of the payment had relevant Note been presented the Notes for payment (where presentation is required for payment) within 30 days after the date on which such payment or such Notes Note became due and payable or the date on which payment thereof is was duly provided for, whichever is was later (except to the extent that the such Holder or beneficial owner would have been entitled to Additional Amounts had the Notes Note been presented on the last day of such 30-day period), or
(viii) any combination of the above clauses (i) through (vii) in this Section 4.19(a). The Company or such Guarantor shall also make such withholding or deduction, and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.
(2b) The Company or the Guarantor shall furnish to the Holders of Notes, within 30 days after the date the payment of any Taxes is due pursuant to applicable law, copies of tax receipts, if any, evidencing that such payment has been made by the Company or such Guarantor, as applicable. The Company or any Guarantor shall indemnify and hold harmless each Holder or beneficial owner of Notes (without duplication) that are outstanding on the date of the required payment (other than an Excluded Holder) and upon written request reimburse each such Holder or beneficial owner (other than an Excluded Holder) for the amount of: (i) any Taxes so levied or imposed and paid by such Holder or beneficial owner (without duplication) as a result of payments made under or with respect to the Notes, and (ii) any Taxes imposed with respect to any reimbursement under Section 4.19(a) hereof, in each case without duplication of any payment made by the Company or a Guarantor pursuant to Section 4.19(a) hereof ((i) and (ii) collectively, a “Reimbursement Payment”).
(c) 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 becomes obligated to pay Additional Amounts with respect to such payment, the Company shall deliver to the Trustee an Officers’ Certificate stating the fact that such Additional Amounts shall be payable, and the amounts so payable and shall set forth such other information as is necessary to enable the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date.
(d) Whenever in this Indenture there is mentioned, in any context: (i) the payment of principal of (or and premium, if any), on(ii) purchase prices in connection with a repurchase or interest a redemption of Notes, (iii) interest, or (iv) any other amount payable on such Notes or with respect to any Holder who is a fiduciary of the Notes or partnership or any person other than the sole beneficial owner Note Guarantees, such mention shall be deemed to include mention of such payment, the payment of Additional Amounts and Reimbursement Payments provided for in this Section 4.19 to the extent that a beneficiary or settlor with respect to that, in such fiduciarycontext, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiaryor Reimbursement Payments are, settlor, member were or beneficial owner been the actual Holder of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with would be payable in respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or thereinthereof.
Appears in 1 contract
Sources: Indenture (Stratos Funding, LP)
Additional Amounts. If a Guarantor (a) All payments that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made Issuers make under or with respect to its Guarantee the Notes or that the Guarantors make under or with respect to the 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 (hereinafter collectively, “Taxes”) imposed or levied on such payments by or on behalf of any jurisdiction (other than the government United States, any state thereof or the District of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction Columbia) in which such any Issuer or Guarantor is incorporated or resident or doing business for tax purposes or any jurisdiction from or through which any of the foregoing makes any payment under its Guarantee is made on the Notes or by or within any department or political subdivision or governmental authority of or in any of the foregoing having power to tax (each each, a “Relevant Taxing Jurisdiction”), unless such Issuer or 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 of law. If an Issuer, Guarantor or other applicable withholding agent is 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 Guarantee, such Issuer or Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as may be necessary so to ensure that the net amount received by the Holders (including Additional Amounts) each beneficial owner, after such withholding or deduction shall (including any withholding or deduction in respect of any Additional Amounts) will not be less than the amount the Holders 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 the foregoing obligation to pay Additional Amounts does not apply to in respect or on account of:
(ai) any Taxes, to the extent such Taxes that would not have been so are imposed but for or levied by a Relevant Taxing Jurisdiction by reason of the existence of any Holder’s or beneficial owner’s 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 with such Relevant Taxing Jurisdiction (other than the mere receipt, ownership, holding or disposition of the Notes, or by reason of the receipt of such payment any payments in respect of any Note or any Guarantee, or the ownership exercise or holding enforcement of rights under any Notes or any Guarantee);
(ii) any Taxes to the extent such Taxes are imposed or withheld by reason of the Notes outside failure of the jurisdiction of organization Holder or incorporation beneficial owner of the GuarantorNotes, 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 is legally eligible to 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 rate of deduction or withholding of, such Taxes imposed by the Relevant Taxing Jurisdiction (bincluding, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(iii) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts Taxes;
(1iv) if the payment could have been made without such any Tax which is payable otherwise than by deduction or withholding if from payments made under or with respect to the beneficiary Notes or any Guarantee;
(v) any Tax imposed on or with respect to any payment by any of the Issuers or Guarantors 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 presented such beneficial owner been the holder of such Note;
(vi) 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 presenting the 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 within (where presentation is required) more than 30 days after the date on which such relevant payment or such Notes became due and payable or is first made available to the date on which payment thereof is duly provided for, whichever is later Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Notes 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 Directive implementing the conclusions of the ECOFIN Council meetings of November 26 and 27, 2000 on the taxation of savings income or 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 any amended or successor version that is 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 1471(b)(1) of the Internal Revenue Code of 1986 as of the Issue Date (or any amended or successor version described above), and including (for the avoidance of doubt) any intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the foregoing; or
(x) any combination of the foregoing.
(c) The Issuers and the Guarantors shall (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority 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 or any Guarantee is due and payable, if the Issuers or any 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 or any Guarantee is due and payable, in which case it will be promptly thereafter), the Issuers shall deliver to the Trustee, with a copy to the Paying Agent, an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The 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 13.02 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, issue, 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 (2ii) the receipt of any payments with respect to, or enforcement of, the Notes or any Guarantee. Upon written request, any of the Issuers or a Guarantor will furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing the 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 13.02 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 evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee 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 of (or principal, premium, if any, on) or interest on such Notes to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, to the extent that a beneficiary amount payable under or settlor with respect to this or any other Note (including payments thereof made pursuant to a Guarantee), 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 of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing reference includes the payment of the Taxes with respect to which Additional Amounts are paid. Amounts, if applicable.
(f) The obligations described under this Section shall preceding provisions will survive any termination, defeasance or discharge of this the Indenture and shall apply mutatis mutandis to any jurisdiction (other than the United States, any state thereof or the District of Columbia) in which any successor Person to any of the Issuer Issuers or Guarantors is organized incorporated, resident or doing business for tax purposes or any jurisdiction from or through which such person makes any payment on this or any other Note (or any Guarantee) and any department, political subdivision or taxing governmental authority of or agency thereof or thereinin any of the foregoing having the power to tax.
Appears in 1 contract
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or All payments made by the interpretation or administration thereof to withhold or deduct any amount from any payment made Company under or with respect to its a Note or by a Guarantor under or with respect to a Guarantee 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) (hereinafter hereinafter, “Taxes”) imposed or levied by or on behalf of the government of The Netherlands or any other jurisdiction in which the jurisdiction of organization Company or incorporation of such any Guarantor is organized or is a resident for tax purposes or within or through which payment is made or any political subdivision or any taxing authority or agency thereof or therein or thereof having power to tax, or within (any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each of the aforementioned being a “Relevant Taxing Jurisdiction”), unless the Company or such Guarantor shall is required to withhold or deduct any such Taxes by law or by the interpretation or administration thereof. If the Company or 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 a Note or a Guarantee of such Guarantor, the Company or such Guarantor, as applicable, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders Holder of such Note (including Additional Amounts) after such withholding or deduction shall of such Taxes will not be less than the amount the Holders such Holder would have received if such Taxes had not been required to be withheld or deducted; provided, however, that notwithstanding the foregoing obligation to pay foregoing, Additional Amounts does will not apply to be paid with respect to:
(a1) any Taxes that would not have been so imposed imposed, deducted or withheld but for the existence of any present or former connection between the relevant Holder or beneficial owner of a Note (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over over, the relevant HolderHolder or beneficial owner of such Note, if the relevant Holder or beneficial owner is an estate, nominee, trust trust, partnership or corporation) and the Relevant relevant Taxing Jurisdiction, including, without limitation, the Holder or beneficial owner being, or having been, a citizen, national, or resident, being, or having been, engaged in a trade or business, being, or having been, physically present in or having had a permanent establishment in the relevant Taxing Jurisdiction (other than but not including the mere receipt of such payment or the ownership or holding of or the Notes outside execution, delivery, registration or enforcement of such Note);
(2) subject to the jurisdiction last paragraph of organization or incorporation of the Guarantor); or (b) this Section, any estate, inheritance, gift, sales, excise, transfer, transfer or personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts ;
(13) if the payment could have been made without such any Taxes payable otherwise than by deduction or withholding from payments under or with respect to such Note or Guarantee;
(4) any Taxes that would not have been so imposed, deducted or withheld if the Holder or beneficial owner of the Note or beneficial owner of any payment on such Note had (i) made a declaration of non-residence, or any other claim or filing for exemption, to which it is entitled or (ii) complied with any certification, identification, information, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder or beneficial owner of such Note or any payment on such Note (provided that (x) such declaration of non-residence or other claim or filing for exemption or such compliance is required by the applicable law of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of the imposition, deduction or withholding of, such Taxes and (y) at least 60 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption or such compliance is required under the applicable law of the Taxing Jurisdiction, the relevant Holder at that time has been notified by the Company, any Guarantor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption or such compliance is required to be made);
(5) any Taxes that would not have been so imposed, deducted or withheld if the beneficiary of the payment had presented the Notes Note for payment within 30 days after the date on which such payment or such Notes 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 Notes Note been presented on the last day of such 30-day period), ;
(6) any payment under or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes a Note to any Holder who that is a fiduciary fiduciary, limited liability company or partnership or any person other than the sole beneficial owner of such paymentpayment or Note, 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 or Note would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such NotesNote;
(7) any Taxes that are required to be deducted or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), and any amended or successor version that is substantively comparable and not materially more onerous to comply with, any current or future regulations or agreements thereunder, official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, or any law or regulation implementing an intergovernmental agreement relating to the foregoing; or
(8) any combination of items (1) through (7) above. Upon The foregoing provisions shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor Person to the Company or a Guarantor. The Company or the applicable Guarantor will also make any applicable withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company or the applicable Guarantor will furnish to the Trustee, within 30 days after the date the payment of any Taxes deducted or withheld is due pursuant to applicable law, certified copies of tax receipts or, if such tax receipts are not reasonably available to the Company or such Guarantor, such other documentation that provides reasonable evidence of such payment by the Company or such Guarantor. Copies of such receipts or other documentation will be made available to the Holders or the Paying Agent, as applicable, upon request. At least 15 days prior to each date on which any payment under or with respect to any Notes is due and payable, unless such obligation to pay Additional Amounts arises after the 30th day prior to such date, in which case it shall be promptly delivered thereafter, if the Company or any Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer shall Company or such Guarantor will deliver to the Trustee and the Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts estimated to be so payable and will set forth such other information necessary to enable such Paying Agent to pay such Additional Amounts to Holders of such Notes on the relevant payment date. The Company or the relevant Guarantor will provide the Trustee with official receipts or other documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. Each Officers’ Certificate shall be relied upon until receipt of a further Officers’ Certificate addressing such matters. The Trustee shall be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary. Whenever in the Taxes Indenture there is mentioned, in any context, the payment of Principal, premium, if any, interest or of any other amount payable under or with respect to which any Note, such mention shall be deemed to include mention of the payment of Additional Amounts are paidto the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The obligations described under this Section shall survive Company and the Guarantors will pay any terminationpresent or future stamp, defeasance court or discharge 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 this the Notes, the Indenture and shall apply mutatis mutandis to or any other document or instrument in relation thereto, excluding all such taxes, charges or similar levies imposed by any jurisdiction outside any jurisdiction in which the Company or any Guarantor or any successor Person to the Issuer is organized or resident for tax purposes or any political subdivision jurisdiction in which a Paying Agent is located, other than those resulting from, or taxing authority required to be paid in connection with, the enforcement of the Notes, the Guarantees or agency thereof any other such document or thereininstrument following the occurrence of any Event of Default with respect to the Notes. The Company and the Guarantors agree to indemnify the Holders of the Notes for any such non-excluded taxes paid by such Holders.
Appears in 1 contract
Sources: Indenture (Owens-Illinois Group Inc)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or All payments made by the interpretation Issuer or administration thereof to withhold or deduct any amount from any payment made under Guarantor under, or with respect to to, the Notes or its Guarantee Guarantee, as the case may be, will 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 (including penalties, interest and other liabilities related thereto) (hereinafter collectively, “Taxes”) imposed or levied by or on behalf of Luxembourg, Brazil or any other jurisdiction in which the government of the jurisdiction of organization Issuer or incorporation of such Guarantor is organized or is a resident for tax purposes or within or through which payment is made or any political subdivision or any taxing authority or agency thereof or therein (each, a “Taxing Jurisdiction”) unless the Issuer or thereof having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes required to withhold or deduct Taxes by law or by the official interpretation or administration thereof. If the Issuer or any jurisdiction from Guarantor is so required to withhold or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”)deduct any amount for, or on account of, such Guarantor shall Taxes from any payment made under or with respect to the Notes or its Guarantee, as the case may be, the Issuer or such Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders each Holder or beneficial owner (including Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders such Holder or beneficial owner would have received if such Taxes imposed or levied by or on behalf of a Taxing Jurisdiction had not been required to be withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to to:
(a1) 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 HolderHolder or beneficial owner, if the relevant Holder or beneficial owner is an estate, nominee, trust trust, partnership, limited liability company or corporation) and the Relevant relevant Taxing Jurisdiction (other than the mere receipt of such payment or the ownership or holding of or the Notes outside execution, delivery, registration or enforcement of the jurisdiction of organization or incorporation of the Guarantorsuch Note); or ;
(b2) any estate, inheritance, gift, sales, excise, transfer, transfer or personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts Taxes;
(13) if the payment could have been made without such any Taxes payable otherwise than by deduction or withholding from payments of principal of, premium, if any, or interest on, such Note;
(4) any Taxes that would not have been so imposed but for the beneficiary presentation of the payment had presented the such Notes (where presentation is required) for payment within 30 on a date more than thirty (30) days after the date on which such payment or such Notes became due and payable or the date on which payment thereof is duly provided for, whichever is later (later, except to the extent that the Holder or beneficial owner thereof would have been entitled to Additional Amounts had the Notes been presented for payment on the last day of any date during such 30-day period);
(5) any Taxes imposed on a note presented for payment by or on behalf of a Holder who would have been able to avoid that withholding or deduction by presenting the relevant note to another paying agent;
(6) any Taxes that would not have been so imposed if the Holder or beneficial owner of the Note had made a declaration of non-residence or any other claim or filing for exemption to which it is entitled (provided that (a) such declaration of non-residence or other claim or filing for exemption is required by the applicable law, regulations or administrative practice of the Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold all or part of such Taxes and (2b) at least thirty (30) days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law, regulations or administrative practice of the Taxing Jurisdiction, the relevant Holder or beneficial owner at that time has been notified by the Issuer or a Guarantor or any other Person through whom payment may be made, that a declaration of non-residence or other claim or filing for exemption is required to be made);
(7) any payment to a Holder of principal of (or premium, if any, on) or interest on such Notes to any Holder who a Note that is a fiduciary or partnership or any person Person other than the sole beneficial owner of such paymentpayment or Note, 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 or Note would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory Note;
(8) any Taxes imposed pursuant to the Trustee evidencing the payment Sections 1471 through 1474 of the Taxes 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 which the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code (collectively, “FATCA”);
(9) any taxes imposed in relation with the application of Luxembourg law of December 23, 2005, as amended from time to time, introducing a 20% withholding tax on certain interest payments made for the immediate benefit of individuals resident in Luxembourg; or
(10) in the case of any combination of the items listed above. Such Additional Amounts are paidwill also not be payable where, had the beneficial owner of the Note been the Holder of the Note, it would not have been entitled to payment of Additional Amounts by reason of any combination of clauses (1) to (10), inclusive, above. The obligations described under this Section shall foregoing provisions will survive any termination, defeasance termination or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which Taxing Jurisdiction with respect to any successor Person to the Issuer is organized or any political subdivision Guarantor, as the case may be. The Issuer or taxing authority relevant Guarantor, as applicable, will (i) make such withholding or agency thereof deduction of applicable Taxes and (ii) remit the full amount deducted or thereinwithheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or relevant 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 Taxing Jurisdiction imposing such Taxes and will furnish such certified copies to the Trustee within thirty (30) days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available, furnish such other documentation that provides reasonable evidence of such payment. At least thirty (30) days prior to each date on which any payment under or with respect to the Notes or the Guarantees, as the case may be, is due and payable (unless 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 any Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer or such Guarantor will deliver to the Trustee an Officers’ Certificate, among other things, 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 to pay such Additional Amounts to Holders of Notes on the payment date. Each such Officers’ Certificate shall be relied upon until receipt of a further Officers’ Certificate addressing such matters. The Issuer or the Guarantors, as the case may be, will pay any present or future stamp, transfer, court or documentary taxes, or any other excise or property taxes, charges or similar levies or Taxes which arise in any jurisdiction from the initial execution, delivery or registration of the Notes, this Indenture or any other document or instrument in relation thereto or the enforcement of the Notes or their respective Guarantees following the occurrence and during the continuance of any Default, and each of the Issuer and the Guarantors agrees to indemnify the Holders and beneficial owners of the Notes and the Trustee for any such Taxes, charges or similar levies paid by such Holders or beneficial owners or the Trustee, excluding (i) all such Taxes, charges or similar levies imposed by any jurisdiction other than a Taxing Jurisdiction unless resulting from, or required to be paid in connection with, the enforcement of this Indenture, the Notes, the Guarantees or any other document or instrument in relation thereto following the occurrence and during the continuance of any Default with respect to the Notes or the Guarantees, or (ii) any present or future stamp, transfer, court or documentary taxes, or any other excise or property taxes, charges or similar levies or Taxes that would become payable upon a registration made by any Holder, beneficial owner of the Notes or the Trustee if such registration is not required by applicable law or not necessary to maintain, preserve, execute, or enforce the rights of that ▇▇▇▇▇▇, beneficial owner of the Notes or Trustee, under the Notes (or any document in relation therewith). Whenever in this Indenture or the Notes there is any reference to the payment of principal, premium, if any, or interest, or any other amount payable under or with respect to the Notes by the Issuer or the Guarantees by the Guarantors, such reference 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
Sources: Indenture (Natura &Co Holding S.A.)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required (a) All payments of principal and interest by applicable law the Issuer in respect of the Securities or by the interpretation Company in respect of the Company Guarantee shall be made without withholding or administration thereof to withhold or deduct any amount from any payment made under or with respect to its Guarantee 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) (hereinafter “Taxes”) charges of whatever nature imposed or levied by or on behalf of the government of the jurisdiction of organization Austria, Brazil or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction or political subdivision thereof from or through which a payment is made or in which such Guarantor the Issuer or the Company (or any successor to the Issuer or the Company) is organized or incorporated, as applicable, or is a resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made having power to tax (each a “"Relevant Taxing Jurisdiction”"), unless the Issuer or the Company is compelled by law to deduct or withhold such Guarantor taxes, duties, assessments, or governmental charges. In such event, the Issuer or the Company shall make such deduction or withholding, make payment of the amount so withheld to the appropriate governmental authority and pay such additional amounts (“Additional Amounts”) as may be necessary so to ensure that the net amount received amounts receivable by the Holders (including Additional Amounts) of Securities after such withholding or deduction shall not be less than equal the amount the Holders respective amounts of principal and interest which would have been received if in respect of the Securities in the absence of such Taxes had not been withheld withholding or deducted; provided, however, that the foregoing obligation to pay deduction ("Additional Amounts"). No such Additional Amounts does not apply to shall be payable:
(ai) in respect of any Taxes taxes, duties, assessments or governmental charges that would not have been so imposed withheld or deducted but for the existence of any present or former connection between the relevant Holder or beneficial owner of the Security (or between a fiduciary, settlor, beneficiary, member or shareholder of, of such Holder or possessor of power over the relevant Holderbeneficial owner, if the relevant such Holder or beneficial owner is an estate, nomineea trust, trust a partnership, a limited liability company or a corporation) and the Relevant Taxing Jurisdiction Jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein, other than the mere receipt of such payment or the ownership or holding of the Notes outside Security or enforcement of rights and the receipt of payments with respect to the Security;
(ii) in respect of Securities presented for payment more than 30 days after the Relevant Date (as defined below) except to the extent that the Holder of such Security would have been entitled to such Additional Amounts, on surrender of such Security for payment on the last day of such period of 30 days;
(iii) in respect of any taxes, duties, assessments or other governmental charges that would not have been so withheld or deducted but for the failure by the Holder, the beneficial owner of the jurisdiction Security, or, in the case of organization amounts payable to the Trustee, the Trustee to
(i) make a declaration of non-residence, or incorporation of the Guarantor); any other claim or filing for exemption, to which it is entitled, or (bii) comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, if (A) compliance is required by the Relevant Taxing Jurisdiction, as a precondition to, exemption from, or reduction in the rate of, the tax, assessment or other governmental charge and (B) the Issuer has given the holders or the Trustee, as applicable, at least 30 days' notice that Holders will be required to provide such certification, identification or other requirement; provided that, in no event, shall such Holder's, beneficial owner's, or Trustee's requirement to make a valid and legal claim for exemption from or reduction of such taxes require such Holder, beneficial owner or the Trustee to provide any materially more onerous information, documents or other evidence than would be required to be provided had such Holder, beneficial owner or the Trustee been required to file U.S. Internal Revenue Services Forms W-8 or W-9, as applicable;
(iv) in respect of any estate, inheritance, gift, sales, excise, transfer, capital gains, excise or personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts ;
(1v) if any withholding or deduction that is imposed on the payment could Securities that is presented for payment, where presentation is required, by or on behalf of a Holder who would have been made without able to avoid such withholding or deduction by presenting such Securities to another paying agent in a member state of the European Union;
(vi) in respect of any tax, assessment or other governmental charge which is payable other than by deduction or withholding if from payments of principal of or interest on the beneficiary Securities; or
(vii) in respect of any combination of the payment had presented the Notes for payment within 30 days after the date on which such payment or such Notes became due and payable or the date on which payment thereof is duly provided forabove.
(b) In addition, whichever is later (except to the extent that the Holder would have been entitled to no Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2) shall be paid with respect to any payment of principal of (or premium, if any, on) or interest on such Notes a Security to any a Holder who is a fiduciary fiduciary, a partnership, a limited liability company or partnership or any person other than the sole beneficial owner of such payment, that payment to the extent that payment would be required by the laws of the Relevant Taxing Jurisdiction to be included in the income, for tax purposes, of a beneficiary or settlor with respect to such the fiduciary, a member of such that partnership, an interest holder in a partnership limited liability company or the a beneficial owner of such payment who would not have been entitled to the Additional Amounts had such that beneficiary, settlor, member or beneficial owner been the actual Holder of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or thereinHolder.
Appears in 1 contract
Sources: Indenture
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment (a) All payments made under or with respect to its Guarantee 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 government Issuers under or with respect to the Notes or any of the jurisdiction Guarantors under or with respect to any Guarantee will be made free and clear of organization and without withholding or incorporation deduction for, or on account of, any Taxes unless the withholding or deduction of such Guarantor Taxes is required by law. If any deduction or any political subdivision or any authority or agency therein or thereof having power to taxwithholding for, or within on account of, any other Taxes imposed or levied by (1) any jurisdiction in which such the Issuers or any Guarantor is incorporated, organized or resident or doing or deemed to be doing business for tax Tax purposes or (2) any jurisdiction from or through which payment under its Guarantee is made or deemed to be made by or on behalf of the Issuers or any Guarantor (including the jurisdiction of any Paying Agent) (each such jurisdiction, or any political subdivision thereof or therein, a “Relevant Taxing Tax Jurisdiction”)) is at any time required to be made from any payments made under or with respect to the Notes or any Guarantee, such Guarantor shall the Issuers or the relevant Guarantor, as applicable, will pay such additional amounts (the “Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by the Holders (including Additional Amounts) each Holder after such withholding or deduction shall not be less than (including after any such withholding or deduction from Additional Amounts) will equal the amount the Holders 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 the foregoing obligation to pay no Additional Amounts does not apply to will be payable with respect to:
(a1) any Taxes that to the extent such Taxes 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, member or shareholder of, or possessor of a power over the relevant Holder, if the relevant such Holder is an estate, nominee, trust trust, partnership, limited liability company or corporation) or beneficial owner of a note and the Relevant Taxing relevant Tax Jurisdiction (including being a resident, citizen or national of, or engaged in business in, or maintaining a permanent establishment or a dependent agent in, or being physically present in such jurisdiction for Tax purposes), other than any connection arising solely from the mere acquisition, ownership, holding or disposition of such note, the enforcement of rights under such note or under a Guarantee and/or the receipt of any payments in respect of such payment note or the ownership or holding of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or Guarantee;
(b2) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall Taxes to the extent such Guarantor be required to pay Additional Amounts (1) if the payment could Taxes would not have been made without such deduction or withholding if imposed but for the beneficiary presentation of the payment had presented the Notes a note for payment within (where presentation is required) more than 30 days after the date on which such payment or such Notes became due and payable or the date on which the relevant payment thereof is duly provided forfirst made available for payment to the Holder, whichever is later (except to the extent that the Holder would have been entitled to Additional Amounts had the Notes note been presented on the last day of such 30-30 day period);
(3) any estate, inheritance, gift, sales, transfer, value added, use, personal property or similar Taxes;
(4) any Taxes required to be withheld or deducted pursuant to laws enacted by Switzerland providing for Taxes applicable to Swiss resident persons (and certain non-resident persons who fail to provide certification of their non-resident status, as requested by the Swiss Federal Tax Administration) according to principles similar to those in the draft legislation proposed by the Swiss Federal Council on December 17, 2014 (including any such laws that impose withholding or deducting obligations with respect to such Taxes on a person other than the Issuers or the relevant Guarantor, including, without limitation, any Paying Agent);
(5) any Taxes imposed on or with respect to a payment made to a Holder or beneficial owner of Notes who would have been able to avoid such withholding or deduction by presenting the relevant note (where presentation is required) to another available Paying Agent;
(6) any Taxes payable other than by deduction or withholding from payments to a Holder or beneficial owner under, or (2) with respect to, the Notes or with respect to any Guarantee;
(7) any Taxes to the extent such Taxes are imposed by reason of the failure of the Holder or beneficial owner of a note, after a written request by the applicable withholding agent addressed to the Holder, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, 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), but in each case, only to the extent the Holder or beneficial owner is legally eligible to provide such certification or documentation;
(8) any Taxes required by sections 1471 through 1474 of the United States Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA;
(9) any Taxes due under the Luxembourg law dated December 23, 2005 introducing a withholding tax or certain payments made to Luxembourg individual residents;
(10) any payment or deduction on principal, interest or other proceeds of principal any note on account of imposta sostitutiva pursuant to Italian Legislative Decree No. 239 of April 1, 1996, as amended or supplemented from time to time, or related implementing regulations; or
(or premium11) any combination of items (1) through (10) above.
(b) In addition, if any, on) or interest on such Notes no Additional Amounts shall be paid with respect to any a Holder who is a fiduciary or a partnership or any person other than the sole beneficial owner of such paymenta note, to the extent that a the beneficiary or settlor with respect to such fiduciary, a the 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 held such Notes directly.
(c) In addition to the actual foregoing, an Issuer or Guarantor, as applicable, will also pay and indemnify the Holder for any present or future stamp, issue, registration, transfer, court or documentary Taxes, or any other excise or property Taxes, which are levied by any Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, this Indenture, any Guarantee or any other document referred to therein, or by any jurisdiction on the enforcement of any Notes or any Guarantee except regarding Luxembourg registration duties for any Luxembourg Taxes payable due to a registration, submission or filing by the Holder of any of the Notes, this Indenture, any Guarantee or any other document referred to therein where such registration, submission or filing is or was not required to maintain or preserve the rights of the Holder under the Notes. Upon request, this Indenture, any Guarantee or any other document referred to therein.
(d) If an Issuer or any Guarantor (if it is the applicable withholding agent), as the case may be, becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or any Guarantee, such Issuer shall provide or Guarantor, as the Trustee with official receipts or other documentation satisfactory case may be, will 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 45 day prior to that payment date, in which case such Issuer or Guarantor shall notify the Trustee and Paying Agent promptly thereafter) an Officer’s Certificate stating that Additional Amounts will be payable, the amount estimated to be so payable and any other information reasonably necessary to enable the Paying Agent to pay Additional Amounts to the applicable Holders on the relevant payment date. The Trustee and the Paying Agent shall be entitled to rely on such Officer’s Certificate as conclusive proof that such payments are necessary.
(e) The Issuer, Co-Issuer or relevant Guarantor, as the case may be, will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer, Co-Issuer or relevant Guarantor will use its reasonable efforts to obtain Tax receipts from any applicable Tax authority evidencing the payment of any Taxes so deducted or withheld, in such form as provided in the ordinary course by the Tax Jurisdiction and as is reasonably available to the Issuer, Co-Issuer or relevant Guarantor. The Issuer, Co-Issuer or relevant Guarantor will furnish to the Paying Agent (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 payment by the Issuer, Co-Issuer or relevant Guarantor, as the case may be, attached thereto or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not available, other evidence of payments (reasonably satisfactory to the Paying Agent) by such entity.
(f) Whenever in this Indenture there is mentioned, in any context, the payment of principal, interest or any other amount payable under, or with respect to, any of the Notes or any Guarantee, such mention shall be deemed to which include mention of the payment of Additional Amounts are paid. to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(g) The above obligations described under this Section shall will survive any termination, defeasance or discharge of this Indenture Indenture, any transfer by a Holder or beneficial owner of its Notes, and shall apply will apply, mutatis mutandis mutandis, to any jurisdiction in which any successor Person to the Issuer, Co-Issuer or any Guarantor is incorporated, organized or resident for Tax purposes or any jurisdiction from or through which payment is made by or on behalf of such Person on the Notes or any Guarantee and, in each case, any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Garrett Motion Inc.)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment All payments made under or with respect to its 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) (hereinafter “Taxes”) imposed or levied by or on behalf of (1) the government of United States, Germany, Luxembourg, the jurisdiction of organization or incorporation of such Guarantor United Kingdom or any political subdivision or any governmental authority thereof or agency therein or thereof having the power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or (2) any jurisdiction from or through which payment under its 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 a “Relevant Taxing Jurisdiction”), collectively, “Taxes,” unless the Issuer, 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 agency provided, however, that in determining what withholding is required by law for U.S. federal income and withholding tax purposes, the Issuer, a Guarantor or other applicable withholding agent shall be entitled to treat any payments on or in respect of the Notes or any Note Guarantee as if the Notes or any Note Guarantee were issued by a U.S. person as defined in section 7701(a)(30) of the Code. If the Issuer, any Guarantor or other applicable withholding agent 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 shall Guarantor, as the case may be, will be required to pay such additional amounts (amount — “Additional Amounts”) ” — as may be necessary so that the net amount received by the Holders (including Additional Amounts) received by each beneficial owner after such withholding or deduction shall (including any withholding or deduction on such Additional Amounts) will not be less than the amount the Holders such beneficial owner would have received if such Taxes had not been withheld or deducted; provided, A-4 however, that no Additional Amounts will be payable with respect to payments made to any beneficial owner to the foregoing extent such Taxes are imposed by reason of (i) such beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, otherwise than by the acquisition, ownership, holding or disposition of the Notes, the enforcement of rights under the Notes or under any Note Guarantee or the receipt of payments in respect of the Notes or any Note Guarantee, or (ii) such beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, 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 a Note or any Note Guarantee, a complete, correct and executed IRS Form W-8 or W-9 or successor form, as applicable, with all appropriate attachments); provided, however, that for purposes of this obligation to pay Additional Amounts, the Issuer, a Guarantor or other applicable withholding agent 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 U.S. person as defined in section 7701(a)(30) of the Code. Further, no Additional Amounts does not apply shall be payable with respect to (ai) any Taxes that would not have been so Tax imposed but for on interest by the existence United States or any political subdivision or governmental authority thereof or therein by reason of any present beneficial owner holding or former connection between 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 or (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 Code with respect to the Issuer or any Guarantor. The Issuer or 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 Holder authority as and when required in accordance with applicable law. The Issuer or Guarantor (as applicable) will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or between a fiduciary, settlor, beneficiary, member Guarantor (as applicable) of any Taxes so deducted or shareholder of, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust or corporation) and the withheld from each Relevant Taxing Jurisdiction (other than imposing such Taxes and will provide such certified copies to the mere receipt of such payment Trustee. Wherever in the Indenture or the ownership Notes or holding of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or (b) any estateNote Guarantee there are mentioned, inheritancein any context, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if 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 or such Notes became due and payable or the date on which payment thereof is duly provided forprincipal, whichever is later (except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (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 of the Notes or any Note Guarantee, such reference shall be deemed to include payment of principal of (or premium, if any, on) or interest on such Notes to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, Additional Amounts as described under this heading to the extent that a beneficiary or settlor with respect to that, in such fiduciarycontext, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiaryare, settlor, member were or beneficial owner been the actual Holder of such Noteswould be payable in respect thereof. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the Taxes 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 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 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 Additional Amounts arise in the jurisdiction in which the Issuer or new issuer is organized (or any political subdivision thereof or therein) and are paidpayable 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 described under in this Section shall Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person Paragraph 2 to the Issuer is organized or any political subdivision or taxing authority or agency thereof or thereinGuarantor shall apply to any successor(s) thereto.
Appears in 1 contract
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or Any payments made by the interpretation or administration thereof to withhold or deduct any amount from any payment made Company under or with respect to its Guarantee 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 or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or on behalf of the government Mexico or of the jurisdiction of organization any subdivision thereof or incorporation of such Guarantor or any political subdivision or any by an authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”hereinafter "Taxes"), such Guarantor shall unless the Company is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If the Company 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, the Company will pay such additional amounts (“"Additional Amounts”") as may be necessary necessary, so that the net amount received by the Holders each Holder of Notes (including Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders each Holder would have received if such Taxes had not been withheld or deducted; provided. Notwithstanding the foregoing, however, that the foregoing obligation to pay no such Additional Amounts does not apply to shall be payable with respect to:
(a) any Taxes that would not have been so which are imposed but for on, or deducted or withheld from, payments made to the Holder or beneficial owner of a Note by reason of the existence of any present or former connection between the relevant Holder or beneficial owner of the Note (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over the relevant Holderover, such Holder or beneficial owner, if the relevant such Holder or beneficial owner is an estate, nomineetrust, trust corporation or corporationpartnership) and the Relevant Taxing Jurisdiction Mexico (other than or any political subdivision or territory or possession thereof or area subject to its jurisdiction), including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) (i) being or having been a citizen or resident thereof, (ii) maintaining or having maintained an office, permanent establishment, fixed base or branch therein, or (iii) being or having been present or engaged in trade or business therein), except for a connection relating to or otherwise arising from the mere ownership of, or receipt of payment under, such payment Note or the ownership exercise of rights under such Note or holding of the Notes outside of Indenture (personally or through the jurisdiction of organization or incorporation of the GuarantorTrustee); or ;
(b) any estate, inheritance, gift, sales, excisestamp, transfer, transfer or personal property tax Tax;
(c) any Taxes that are imposed on, or similar taxwithheld or deducted from, assessment payments made to the Holder or governmental charge; nor beneficial owner of a Note to the extent such Taxes would not have been so imposed, deducted or withheld but for the failure by such Holder or beneficial owner of such Note to comply with any certification, identification, information, documentation or other reporting requirement concerning the nationality, residence, identity or connection with Mexico of the Holder or beneficial owner of such Note if (i) such compliance is required or imposed by a statute, treaty, regulation, rule, ruling or administrative practice in order to make any claim for exemption from, or reduction in the rate of, the imposition, withholding or deduction of any Taxes, and (ii) at least 60 days prior to the first payment date with respect to which the Company shall apply this clause (c), the Company shall have notified all the Holders of Notes, in writing, that such Guarantor Holders or beneficial owners of the Notes will be required to pay Additional Amounts provide such information or documentation;
(1d) any Taxes imposed on, or withheld or deducted from, payments made to a Holder or beneficial owner of a Note at a rate in excess of the 4.9% rate of Tax in effect on the date hereof and uniformly applicable in respect of payments made by the Company to all Holders or beneficial owners eligible for the benefits of a treaty for the avoidance of double taxation to which Mexico is a party without regard to the particular circumstances of such Holders or beneficial owners provided that, upon any subsequent increase in the rate of Tax that would be applicable to payments to all such Holders or beneficial owners without regard to their particular circumstances, such increased rate shall be substituted for the 4.9% rate for purposes of this clause (d), but only to the extent that (i) such Holder or beneficial owner has failed to provide on a timely basis, at the reasonable request of the Company (subject to the conditions set forth below), information, documentation or other evidence concerning whether such Holder or beneficial owner is eligible for benefits under a treaty for the avoidance of double taxation to which Mexico is a party if necessary to determine the payment could have been made without such appropriate rate of deduction or withholding if of Taxes under such treaty or under any statute, regulation, rule, ruling or administrative practice, and (ii) at least 60 days prior to the beneficiary first payment date with respect to which the Company shall make such reasonable request, the Company shall have notified the Holders of the payment had presented Notes, in writing, that such Holders or beneficial owners of Notes will be required to provide such information, documentation or other evidence;
(e) to or on behalf of a Holder of a Note in respect of Taxes that would not have been imposed but for the Notes presentation by such Holder for payment within on a date more than 30 days after the date on which such payment or such Notes became due and payable or the date on which payment thereof is duly provided forfor and notice thereof given to Holders, whichever is later (occurs later, except to the extent that the Holder of such Note would have been entitled to Additional Amounts had the Notes been presented in respect of such Taxes on the last day of presenting such Note for payment on any date during such 30-day period;
(f) any combination of (a), (b), (c), (d) or (2e) above (the Taxes described in clauses (a) through (f), for which no Additional Amounts are payable, are hereinafter referred to as "Excluded Taxes"). Notwithstanding the foregoing, the limitations on the Company's obligation to pay Additional Amounts set forth in clauses (c) and (d) above shall not apply if (i) the provision of information, documentation or other evidence described in such clauses (c) and (d) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note (taking into account any relevant differences between U.S. and Mexican law, rules, regulations or administrative practice) than comparable information or other reporting requirements imposed under U.S. tax law, regulation and administrative practice (such as IRS Forms W-8, W-8BEN and W-9) or (ii) Rule 3.25.15 issued by the Secretaria de Hacienda y Credito Publico (Ministry of Finance and Public Credit) on March 31, 2003 or a substantially similar successor of such rule is in effect, unless the provision of the information, documentation or other evidence described in clauses (c) and (d) is expressly required by statute, regulation, rule, ruling or administrative practice in order to apply Rule 3.25.15 (or a substantially similar successor of such rule), the Company cannot obtain such information, documentation or other evidence on its own through reasonable diligence and the Company otherwise would meet the requirements for application of Rule 3.25.15 (or such successor of such rule). In addition, such clauses (c) and (d) shall not be construed to require that a non-Mexican pension or retirement fund or a non-Mexican financial institution or any other Holder register with the Ministry of Finance and Public Credit for the purpose of establishing eligibility for an exemption from or reduction of Mexican withholding tax or to require that a Holder or beneficial owner certify or provide information concerning whether it is or is not a tax-exempt pension or retirement fund. The Company will, upon written request of any Holder, reimburse such Holder for the amount of (i) any Taxes (other than Excluded Taxes) so levied or imposed and paid by such Holder as a result of payments made under or with respect to the Notes and (ii) any Taxes (other than Excluded Taxes) so levied or imposed with respect to any reimbursement under the foregoing 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 on such reimbursement had not been imposed. 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 will be obligated to pay Additional Amounts with respect to such payment (other than Additional Amounts payable on the Closing Date), 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 set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date. Whenever either in the Indenture or in the Offering Memorandum 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 Note, 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 premiumwould be payable in respect thereof. In the event that the Company has become or would become obligated to pay, on the next date on which any amount would be payable under or with respect to the Notes, any Additional Amount in excess of those attributable to a Mexican withholding tax rate of 10%, as a result of certain changes affecting Mexican withholding tax laws, the Company may redeem all, but not less than all, of the Notes at any time at 100% of the principal amount, together with accrued interest thereon, if any, on) or interest on such Notes to any Holder 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 of such NotesRedemption Date. Upon request, the Issuer shall The Company will provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of Mexican taxes in respect of which the Taxes with respect to which Company has paid any Additional Amounts are paidAmounts. The obligations described under this Section shall survive any termination, defeasance or discharge Copies of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person such documentation will be made available to the Issuer is organized Holders or the Paying Agent, as applicable, upon request therefor. In addition, the Company will pay any stamp, issue, registration, documentary or other similar taxes and other duties (including interest and penalties) (i) payable in Mexico or the United States (or any political subdivision of either jurisdiction) in respect of the creation, issue and offering of the Notes, and (ii) payable in Mexico (or taxing authority any political subdivision thereof) in respect of the subsequent redemption or agency thereof retirement of the Notes (other than in the case of any subsequent redemption or thereinretirement, Excluded Taxes, except for this purpose, the definition of Excluded Taxes will not include those defined in clause (b) thereof).
Appears in 1 contract
Sources: Indenture (Innova S De Rl)
Additional Amounts. If beneficial owner to the extent such Taxes are imposed by reason of (i) such beneficial owner being considered to be or to have been connected with a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made under or with respect to its Guarantee 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 government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”), such Guarantor shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received otherwise than by the Holders acquisition, ownership, holding or disposition of the Notes, the enforcement of rights under the Notes or under any Note Guarantee or the receipt of payments in respect of the Notes or any Note Guarantee, or (including Additional Amountsii) after such beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, a Guarantor or other applicable withholding agent to make or deduction shall not be less than the amount the Holders would have received if obtain authorization to make payments without such Taxes had not been withheld (including, without limitation, providing prior to the receipt of any payment on or deductedin respect of a Note or any Note Guarantee, a complete, correct and executed IRS Form W-8 or W-9 or successor form, as applicable, with all appropriate attachments); provided, however, that the foregoing for purposes of this obligation to pay Additional Amounts, the Issuer, a Guarantor or other applicable withholding agent 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 U.S. person as defined in section 7701(a)(30) of the Code. Further, no Additional Amounts does not apply shall be payable with respect to (ai) any Taxes that would not have been so Tax imposed but for on interest by the existence United States or any political subdivision or governmental authority thereof or therein by reason of any present beneficial owner holding or former connection between 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 or (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 Code with respect to the Issuer or any Guarantor. The Issuer or 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 Holder authority as and when required in accordance with applicable law. The Issuer or Guarantor (as applicable) will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or between a fiduciary, settlor, beneficiary, member Guarantor (as applicable) of any Taxes so deducted or shareholder of, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust or corporation) and the withheld from each Relevant Taxing Jurisdiction (other than imposing such Taxes and will provide such certified copies to the mere receipt of such payment Trustee. Wherever in the Indenture or the ownership Notes or holding of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or (b) any estateNote Guarantee there are mentioned, inheritancein any context, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if 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 or such Notes became due and payable or the date on which payment thereof is duly provided forprincipal, whichever is later (except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (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 of the Notes or any Note Guarantee, such reference shall be deemed to include payment of principal of (or premium, if any, on) or interest on such Notes to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, Additional Amounts as described under this heading to the extent that a beneficiary or settlor with respect to that, in such fiduciarycontext, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiaryare, settlor, member were or beneficial owner been the actual Holder of such Noteswould be payable in respect thereof. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the Taxes 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 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 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 Additional Amounts arise in the jurisdiction in which the Issuer or new issuer is organized (or any political subdivision thereof or therein) and are paidpayable 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 described under in this Section shall Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person Paragraph 2 to the Issuer is organized or any political subdivision or taxing authority or agency thereof or thereinGuarantor shall apply to any successor(s) thereto.
Appears in 1 contract
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or (a) All payments by the interpretation Company in respect of the Notes or administration thereof to withhold the Guarantor in respect of a Note Guarantee will be made without withholding or deduct any amount from any payment made under or with respect to its Guarantee 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) (hereinafter “Taxes”) charges of whatever nature imposed or levied by or on behalf of any jurisdiction in which the government Company or the Guarantor is organized or is a resident for tax purposes, or any other jurisdiction through which any payments under the Notes are made by or on behalf of the jurisdiction of organization or incorporation of such Guarantor Company, or any political subdivision or any authority or agency therein or thereof thereof, having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”), unless the Company or the Guarantor is compelled by law to deduct or withhold such taxes, duties, assessments, or governmental charges. In such event, the Company or the Guarantor shall will make such deduction or withholding, make payment of the amount so withheld to the appropriate governmental authority and pay such additional amounts (“Additional Amounts”) as may be necessary so to ensure that the net amount received amounts receivable by the Holders (including Additional Amounts) of Notes after such withholding or deduction shall not be less than equal the amount the Holders respective amounts of principal and interest which would have received if been receivable in respect of the Notes in the absence of such Taxes had not been withheld withholding or deducted; provideddeduction (“Additional Amounts”). All references to “Company” (or, howeveras applicable, “Guarantor”) in this Article 3 include any entity that replaces and becomes a substitute for the foregoing obligation Issuer (or, as applicable, the Guarantor), in each case as a result of a substitution or replacement that occurs pursuant to pay the terms of this Indenture. No such Additional Amounts does not apply shall be payable:
(i) to, or to (a) any Taxes that would not have been so imposed but a third party on behalf of, a Holder who is liable for such taxes, duties, assessments or governmental charges in respect of such note by reason of the existence of any present or former connection between the relevant such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over the relevant such Holder, if the relevant such Holder is an estate, nomineea trust, trust a partnership, a limited liability company or a corporation) or beneficial owner and the Relevant Taxing Jurisdiction Jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member or shareholder) or beneficial owner being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein, other than the mere receipt of such payment or the ownership or holding of the Note or enforcement of rights and the receipt of payments with respect to the Note;
(ii) in respect of Notes outside surrendered (if surrender is required) more than 30 days after the Relevant Date except to the extent that the Holder of such Note would have been entitled to such Additional Amounts, on surrender of such Note for payment on the last day of such period of 30 days;
(iii) in respect of any tax, duty, assessment or other governmental charge imposed on a Note presented for payment by or on behalf of a Holder who would have been able to avoid that withholding or deduction by presenting the relevant Note to another paying agent in a member state of the jurisdiction European Union;
(iv) in respect of organization any tax, duty, assessment or incorporation other governmental charge imposed or withheld pursuant to Sections 1471 through 1474 of the GuarantorU.S. Internal Revenue Code of 1986, as amended (the “Code”); , as of the date of this Indenture (or any amended or successor version), current or future U.S. Treasury Regulations issued thereunder or any official interpretation thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code;
(bv) where such Additional Amount is imposed on a payment to, or for the benefit of, a Luxembourg resident individual pursuant to the Luxembourg law of 23 December 2005;
(vi) to, or to a third party on behalf of, a Holder who is liable for such taxes, duties, assessments or other governmental charges by reason of such Holder’s failure to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with the Relevant Jurisdiction, if (1) compliance is required by the Relevant Jurisdiction, as a precondition to, exemption from, or reduction in the rate of, the tax, duty, assessment or other governmental charge and (2) the Company has given the Holders or such third party, as applicable, at least 30 days’ notice that they will be required to provide such certification, identification or other requirement;
(vii) in respect of any estate, inheritance, gift, sales, excise, transfer, capital gains, excise or personal property tax or similar tax, duty, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts ;
(1viii) if the payment could have been made without such in respect of any tax, duty, assessment or other governmental charge which is payable other than by deduction or withholding if from payments of principal of or interest on the beneficiary Note or by direct payment by the Company or the Guarantor in respect of claims made against the Company or the Guarantor; or
(ix) in respect of any combination of the payment had presented the Notes for payment within 30 days after the date on which such payment or such Notes became due and payable or the date on which payment thereof is duly provided for, whichever is later above.
(except to the extent that the Holder would have been entitled to b) No Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2) shall be paid with respect to any payment of principal of (or premium, if any, on) or interest on such Notes a Note to any a Holder who is a fiduciary fiduciary, a partnership, a limited liability company or partnership or any person other than the sole beneficial owner of such payment, that payment to the extent that payment would be required by the laws of the Relevant Jurisdiction to be included in the income, for tax purposes, of a beneficiary or settlor with respect to such the fiduciary, a member of such that partnership, an interest holder in a partnership limited liability company or the a beneficial owner of such payment who would not have been entitled to the Additional Amounts had such that beneficiary, settlor, member or beneficial owner been the actual Holder of such NotesHolder. Upon requestThe Notes are subject in all cases to any tax, the Issuer shall provide the Trustee with official receipts fiscal or other documentation satisfactory law or regulation or administrative or judicial interpretation. Except as specifically provided above, neither the Company nor the Guarantor shall be required to the Trustee evidencing the make a payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any terminationtax, defeasance duty, assessment or discharge of this Indenture and shall apply mutatis mutandis to governmental charge imposed by any jurisdiction in which any successor Person to the Issuer is organized government or any a political subdivision or taxing authority or agency thereof or therein.
(c) In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and, as a result thereof such Holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess to the Company.
(d) Any reference in this Indenture or the Notes to principal, interest or any other amount payable in respect of the Notes by the Company or the Note Guarantee by the Guarantor will be deemed also to refer to any Additional Amount, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this Section. The foregoing obligation will survive termination or discharge of this Indenture, payment of the Notes and/or the resignation or removal of the Trustee or any Agent hereunder.
Appears in 1 contract
Sources: Indenture (Cosan Ltd.)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment (a) All payments made under or with respect to its Guarantee the Notes or the Note Guarantees shall 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 (including related penalties, interest and other liabilities related theretoliabilities) (hereinafter hereinafter, “Taxes”) imposed or levied by or on behalf of (1) the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to taxUnited Kingdom, or within (2) the United States, (3) any other jurisdiction in which such the Issuer or any Note Guarantor is organized or is otherwise resident for tax purposes or purposes, (4) any jurisdiction from or through which payment under its Guarantee is made and (each 5) any political subdivision or governmental authority or agency of or in any of the foregoing having the power to tax (each, a “Relevant Taxing Jurisdiction”), such unless the Issuer or any Note Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(b) If the Issuer or a 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 or the Note Guarantees, the Issuer or the applicable Note Guarantor shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders and beneficial owners (including Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders and beneficial owners would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to to:
(a1) 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 over, the relevant HolderHolder or beneficial owner, if the relevant Holder or beneficial owner is an estate, nominee, trust trust, partnership or corporation) and the Relevant Taxing Jurisdiction (other than the mere receipt of such payment or the ownership or holding of the Notes outside of the jurisdiction of organization or incorporation of the Guarantorsuch Note); or ;
(b2) any estate, inheritance, gift, sales, excise, transfer, personal property tax Tax or similar taxTax;
(3) any Taxes which are payable otherwise than by withholding from payments of (or in respect of) principal of, assessment or governmental charge; nor shall any premium or interest on, the Notes;
(4) any Taxes that are imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of a Note with a request by the Issuer addressed to the Holder or such Guarantor be beneficial owner (A) to provide information concerning the nationality, residence, identity or present or former connection with a Relevant Taxing Jurisdiction of the Holder or such beneficial owner or (B) to make any declaration or other similar claim or satisfy any certification, information or reporting requirement, which, in the case of (A) or (B), is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such Tax;
(5) any withholding or deduction imposed on a payment to an individual required to pay Additional Amounts be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings income (1the “Directive”) if the payment could or any law implementing, or introduced in order to conform to, such Directive;
(6) any Taxes that would not have been made without such deduction or withholding if imposed but for the beneficiary of failure to present the payment had presented the Notes Note for payment within 30 days after the date on which such payment or such Notes 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 such beneficiary would have been entitled to Additional Amounts had the Notes Note been presented on the last day of such the 30-day period), or ;
(27) any Taxes imposed with respect to any payment of principal of (or premium, if any, any on) or interest on such Notes Note to any Holder who is a fiduciary or partnership or any person 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 of such Notes. Upon requestNote;
(8) any Taxes imposed if the Note is presented for payments by or on behalf of a Holder or beneficial owner who would be able to avoid a withholding or deduction by presenting the relevant Note to another paying agent in a Member State; or
(9) any Taxes imposed as a result of a combination of items (1) through (8) above.
(c) If the Issuer or any Note Guarantor will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or the relevant Note Guarantee, as applicable, the Issuer or such Note Guarantor, as applicable, will deliver to the Trustee at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Issuer or the Note Guarantor, as applicable, shall notify the Trustee promptly thereafter but in no event later than two Business Days prior to the date of payment) notice of payment in the form of an Officer’s Certificate. In either circumstance, the Officer’s Certificate must state that Additional Amounts will be payable and the amount so payable. The Officer’s Certificate must also set forth any other information necessary to enable the Paying Agent to pay Additional Amounts to Holders and beneficial owners on the relevant payment date.
(d) The Issuer or any Note Guarantor will (i) make such 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 provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. Certificated copies of such receipts and such other documentation shall be made available to Holders upon request and will be made available at the offices of the Paying Agent if the Notes are then listed on the Luxembourg Stock Exchange. The obligations described Issuer will attach to such copies an Officer’s Certificate stating (x) that the amount of withholding Taxes evidenced by such copies was paid in connection with any payment made under or with respect to the Notes or any Note Guarantee and (y) the amount of such withholding Taxes paid per $1,000 of Notes.
(e) Whenever in this Indenture there is mentioned, in any context, the payment of principal, purchase prices in connection with a purchase of Notes, interest, or any other amount payable on or with respect to any of the Notes or any Note Guarantee, that reference shall be deemed to include payment of Additional Amounts provided for in this section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The Issuer or a Note Guarantor will 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 the Notes, the Note Guarantees, this Indenture or any other related document or instrument, or the receipt of any payments with respect to the Notes or the Note Guarantees, excluding taxes, charges or similar levies imposed by any jurisdiction that is not a Relevant Taxing Jurisdiction, and the Issuer will agree to indemnify the Holders or the Trustee for any such taxes paid by the Holders or the Trustee.
(g) The preceding provisions of this Section shall 2.13 will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer or any Note Guarantor is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Virgin Media Inc.)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or 12.1 All payments made by the interpretation Issuer or administration thereof to withhold or deduct any amount from any payment made under Guarantor (each, a “Payor”) under, or with respect to its Guarantee to, the Notes or the Note 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 penalties, interest and other liabilities related thereto) imposed, levied, collected or assessed by the Republic of Singapore or any other jurisdiction in which the Issuer or any Guarantor is organized or resident for tax purposes or from or through which payment is made (hereinafter including, in each case, any political subdivision thereof (the “Relevant Taxing Jurisdiction”) (collectively, “Taxes”) unless the Payor is required to withhold or deduct such Taxes by law or by the official interpretation or administration thereof.
12.1.1 If the Payor is required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”)Jurisdiction from any payment made under or with respect to the Notes or the Note Guarantees, such Guarantor shall the Payor will pay such additional amounts (“Additional Amounts”) as may be necessary (without duplication) so that the net amount received by the Holders each holder of a Note (including Additional Amounts) or the Note Guarantees, as the case may be after such withholding or deduction shall will not be less than the amount the Holders such holder would have received if such Taxes had not been required to be withheld or deducted; provided.
12.1.2 However, however, that the foregoing obligation to pay no such Additional Amounts does not apply will be payable with respect to any payment on any Note or under the Note Guarantees to the extent:
(a) that any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant Holder beneficial owner or holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over the relevant Holdersuch holder, if the relevant Holder holder is an estate, nomineea trust, trust a partnership or a corporation) of a Note and the Relevant Taxing Jurisdiction (Jurisdiction, other than a connection arising solely from:
(i) the mere holding of such Note;
(ii) the exercise of any right provided by such Note or Note Guarantees;
(iii) the enforcement of the terms of such Note or Note Guarantees; or
(iv) the receipt of payments with respect to such payment Note or the ownership or holding of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or Note Guarantees;
(b) of any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required Taxes with respect to pay Additional Amounts (1) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had a Note presented the Notes for payment within 30 more than thirty (30) days after the date on which such that payment or such Notes became due and payable or the date on which payment thereof is duly provided forfor and notice given to beneficial owners or holders of Notes, whichever is later (occurs later, except to the extent that payments to the Holder relevant holder would have been subject to deduction or withholding of Taxes, and the beneficial owner or holder of such Note would have been entitled to such Additional Amounts had the Notes been presented on presenting such Note for payment on the last day of such thirty (30-) day period);
(c) that any such Taxes would not have been imposed but for the failure of the beneficial owner or the holder of such Note to comply with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of the beneficial owner or the holder of such Note, in each case if compliance is required by law, regulation, administrative practice, treaty or other governmental doctrine as a precondition to exemption from, or reduction in the rate of, deduction or withholding of such Taxes;
(2d) of any estate, inheritance, gift, sales, transfer, personal property or other similar tax, assessment, or other governmental charge imposed with respect to such Notes or under the Guarantee;
(e) that any such taxes, duties, assessments or governmental charges are imposed on a payment to an individual and is required to be made pursuant to any European Union directive on the taxation of principal savings income implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 (including European Union Directive on the Taxation of Savings Income 2003/48/EC) or any law implementing or complying with, or introduced in order to confirm to, such Directive;
(f) such Note was presented for payment by or on behalf of a holder who would have been able to avoid such withholding or deduction by presenting the relevant Note to another paying agent in a different jurisdiction;
(g) any tax, duty, assessment or other governmental charge which is payable otherwise than by deduction on or withholding from payments of (or in respect of) principal of, premium, if any, on) or interest on such on, the Notes or under the Guarantee; or
(h) of any combination of the circumstances above.
12.1.3 Any reference herein, in the Indenture, in the Notes or in the Note Guarantees to principal, premium or interest shall be deemed also to refer to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, Additional Amounts to the extent that a beneficiary such Additional Amounts are, were or settlor with would be payable in respect thereof under this Section 12 unless the context otherwise requires.
12.1.4 Although the Trustee has no duty to such fiduciary, a member monitor the tax compliance status of such a partnership the Issuer or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiaryGuarantors, settlor, member or beneficial owner been the actual Holder of such Notes. Upon upon request, the Issuer shall provide the Trustee with official certified copies of tax receipts or other documentation documentation, to the extent available, satisfactory to the Trustee evidencing the payment of any taxes with respect to payments on the Notes, and the Guarantors shall provide the Trustee with certified copies of tax receipts or other documentation, to the extent available, satisfactory to the Trustee evidencing the payment of any Taxes with respect to which payments under the Note Guarantees. Copies of this documentation will be made available to the holders or (to the extent evidence of beneficial ownership reasonably satisfactory to the applicable Payor is provided to such Payor) beneficial owners of the Notes or the paying agent upon request.
12.1.5 Such Additional Amounts will also not be paid to the extent that such payments are paidwith respect to any payment of the principal of, premium, if any, or any interest on the Notes or under the Note Guarantees to any holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the Relevant Taxing Jurisdiction 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 the benefit of such Additional Amounts had it been the holder of such Note or the beneficiary under the Note Guarantees.
12.1.6 At least thirty (30) days prior to each date on which any payment under or with respect to the Notes or the Note Guarantees is due and payable (unless such obligation to pay Additional Amounts arises shortly before or after the thirtieth (30th) day prior to such date, in which case it shall be promptly thereafter), if the Payor will be obligated to pay Additional Amounts with respect to such payment, the Payor will deliver to the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to holders of Notes on the payment date. Each such Officers’ Certificate shall be relied upon until receipt of a further Officers’ Certificate addressing such matters.
12.1.7 The Payor will pay any present or future stamp, court or documentary taxes, or any other excise or property taxes, charges or similar levies which arise in any jurisdiction from the execution, delivery or registration of the Notes or any other document or instrument referred to therein (other than a transfer of the Notes), or the receipt of any payment with respect to the Notes or the Note Guarantees, excluding any such taxes, charges or similar levies imposed by any jurisdiction that is not a Relevant Taxing Jurisdiction , other than those resulting from, or required to be paid in connection with, the enforcement of the Notes or the Note Guarantees or any other such document or instrument following the occurrence of any acceleration of the Notes prior to their stated maturity.
12.1.8 The foregoing obligations described under this Section shall will survive any termination, defeasance or discharge of this the Indenture and shall will apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer a Payor is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (PT Centralpertiwi Bahari)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or All payments made by the interpretation or administration thereof to withhold or deduct any amount from any payment made Company under or with respect to its a Note or by a Guarantor under or with respect to a Guarantee 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) (hereinafter hereinafter, “Taxes”) ), unless the Company or such Guarantor is required to withhold or deduct any such Taxes by law or by the interpretation or administration thereof. If the Company or any Guarantor is so required to withhold or deduct any amount for or on account for Taxes imposed or levied by or on behalf of the government of The Netherlands or any other jurisdiction in which the jurisdiction of organization Company or incorporation of such any Guarantor is organized or is a resident for tax purposes or within or through which payment is made or any political subdivision or any taxing authority or agency thereof or therein or thereof having power to tax, or within (any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each of the aforementioned being a “Relevant Taxing Jurisdiction”)) from any payment made under or with respect to a Note or a Guarantee of such Guarantor, the Company or such Guarantor shall Guarantor, as applicable, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders Holder of such Note (including Additional Amounts) after such withholding or deduction shall of such Taxes will not be less than the amount the Holders such Holder would have received if such Taxes had not been required to be withheld or deducted; provided, however, that notwithstanding the foregoing obligation to pay foregoing, Additional Amounts does will not apply to be paid with respect to:
(a1) any Taxes that would not have been so imposed imposed, deducted or withheld but for the existence of any present or former connection between the relevant Holder or beneficial owner of a Note (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over over, the relevant HolderHolder or beneficial owner of such Note, if the relevant Holder or beneficial owner is an estate, nominee, trust trust, partnership or corporation) and the Relevant relevant Taxing Jurisdiction, including, without limitation, the Holder or beneficial owner being, or having been, a citizen, national, or resident, being, or having been, engaged in a trade or business, being, or having been, physically present in or having had a permanent establishment in the relevant Taxing Jurisdiction (other than but not including the mere receipt of such payment or the ownership or holding of or the Notes outside execution, delivery, registration or enforcement of such Note);
(2) subject to the jurisdiction last paragraph of organization or incorporation of the Guarantor); or (b) this Section 3.07, any estate, inheritance, gift, sales, excise, transfer, transfer or personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts ;
(13) if the payment could have been made without such any Taxes payable otherwise than by deduction or withholding from payments under or with respect to such Note or a Guarantee;
(4) any Taxes that would not have been so imposed, deducted or withheld if the Holder or beneficial owner of the Note or beneficial owner of any payment on such Note had (i) made a declaration of non-residence, or any other claim or filing for exemption, to which it is entitled or (ii) complied with any certification, identification, information, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder or beneficial owner of such Note or any payment on such Note (provided that (x) such declaration of non-residence or other claim or filing for exemption or such compliance is required by the applicable law of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of the imposition, deduction or withholding of, such Taxes and (y) at least 60 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption or such compliance is required under the applicable law of the Taxing Jurisdiction, the relevant Holder at that time has been notified by the Company, any Guarantor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption or such compliance is required to be made);
(5) any Taxes that would not have been so imposed, deducted or withheld if the beneficiary of the payment had presented the Notes Note for payment within 30 days after the date on which such payment or such Notes 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 Notes Note been presented on the last day of such 30-day period), ;
(6) any payment under or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes a Note to any Holder who Person that is a fiduciary fiduciary, limited liability company or partnership or any person other than the sole beneficial owner of such paymentpayment or Note, 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 or Note would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such NotesNote;
(7) any Taxes that are required to be deducted or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), and any amended or successor version that is substantively comparable and not materially more onerous to comply with, any current or future regulations or agreements thereunder, official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, or any law or regulation implementing an intergovernmental agreement relating to the foregoing;
(8) any Taxes imposed or withheld pursuant to the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021); or
(9) any combination of items (1) through (8) above. Upon The foregoing provisions shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor Person to the Company or a Guarantor. The Company or the applicable Guarantor will also make any applicable withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company or the applicable Guarantor will furnish to the Trustee, within 30 days after the date the payment of any Taxes deducted or withheld is due pursuant to applicable law, certified copies of tax receipts or, if such tax receipts are not reasonably available to the Company or such Guarantor, such other documentation that provides reasonable evidence of such payment by the Company or such Guarantor. Copies of such receipts or other documentation will be made available to the Holders or the Paying Agent, as applicable, upon request. At least 15 days prior to each date on which any payment under or with respect to any Notes is due and payable, unless such obligation to pay Additional Amounts arises after the 15th day prior to such date, in which case it shall be promptly delivered thereafter, if the Company or any Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer shall Company or such Guarantor will deliver to the Trustee and the Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts estimated to be so payable and will set forth such other information necessary to enable such Paying Agent to pay such Additional Amounts to Holders of such Notes on the relevant payment date. If requested by the Trustee, the Company or the relevant Guarantor will provide the Trustee with official receipts or other documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. Each Officers’ Certificate shall be relied upon until receipt of a further Officers’ Certificate addressing such matters. The Trustee shall be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary. Whenever in this Indenture there is mentioned, in any context, the Taxes payment of principal, premium, if any, interest or of any other amount payable under or with respect to which any Note, such mention shall be deemed to include mention of the payment of Additional Amounts are paidto the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The obligations described under this Section shall survive Company and the Guarantors will pay any terminationpresent or future stamp, defeasance court or discharge 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 the Notes, this Indenture and shall apply mutatis mutandis to or any other document or instrument in relation thereto, excluding all such taxes, charges or similar levies imposed by any jurisdiction outside any jurisdiction in which the Company or any Guarantor or any successor Person to the Issuer is organized or resident for tax purposes or any political subdivision jurisdiction in which a Paying Agent is located, other than those resulting from, or taxing authority required to be paid in connection with, the enforcement of the Notes, the Guarantees or agency thereof any other such document or thereininstrument following the occurrence of any Event of Default with respect to the Notes. The Company and the Guarantors agree to indemnify the Holders of the Notes for any such non-excluded taxes paid by such Holders.
Appears in 1 contract
Sources: Indenture (O-I Glass, Inc. /DE/)
Additional Amounts. If (a) All payments made by any Guarantor which is not formed or incorporated under the laws of the United States or any State of the United States or the District of Columbia (each, a “non-U.S. Guarantor”) under or with respect to such non-U.S. Guarantor’s Guarantee shall be made free and clear of and without withholding or deduction for or on account of any present or future Taxes imposed or levied by or on behalf of any Taxing Authority within Brazil or other jurisdiction in which such non-U.S. Guarantor that is organized or engaged in business for tax purposes (any of the aforementioned being a Foreign Subsidiary or is a Puerto Rican corporation “Taxing Jurisdiction”), unless such non-U.S. Guarantor is required to withhold or deduct Taxes by applicable law or by the interpretation or administration thereof thereof. If any non-U.S. Guarantor is required to withhold or deduct any amount for or on account of Taxes imposed by a Taxing Authority within Brazil, or within any other Taxing Jurisdiction, from any payment made under or with respect to its the Guarantee 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 government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”)non-U.S. Guarantor, such non-U.S. Guarantor shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders each Holder of Notes (including Additional Amounts) after such withholding or deduction shall not be less than equal the amount the Holders Holder would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay no Additional Amounts does not apply to shall be payable with respect to:
(a1) any Tax imposed by the United States or by any political subdivision or Taxing Authority thereof or therein;
(2) any Taxes that would not have been so imposed imposed, deducted or withheld but for the existence of any present or former connection between the relevant Holder or beneficial owner having an interest in a Note (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over over, the relevant HolderHolder or beneficial owner of such Note, if the relevant Holder or beneficial owner is an estate, nominee, trust trust, partnership or corporation) and the Relevant relevant Taxing Jurisdiction (other than the mere receipt of such payment or the ownership or holding of the Notes outside execution, delivery, registration or enforcement of the jurisdiction of organization or incorporation of the Guarantorsuch Note); or ;
(b3) any estate, inheritance, gift, sales, sales excise, transfer, transfer or personal property tax Tax or similar taxTax, assessment or governmental charge; nor shall such Guarantor be required , subject to pay Additional Amounts Section 11.03(f);
(14) if the payment could have been made without such any Taxes payable otherwise than by deduction or withholding from payments under or with respect to the Guarantee by any non-U.S. Guarantor of such Note;
(5) any Taxes that would not have been so imposed, deducted or withheld if the Holder or beneficial owner of a Note or beneficial owner having an interest in the Note or beneficial owner of any payment on the Guarantee of such Note had (i) made a declaration of non-residence, or any other claim or filing for exemption, to which it is entitled or (ii) complied with any certification, identification, information, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder or beneficial owner of such Note or any payment on such Note (provided that (x) such declaration of non-residence or other claim or filing for exemption or such compliance is required by the applicable law of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of the imposition, deduction or withholding of, such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption or such compliance is required under the applicable law of the Taxing Jurisdiction, Holders at that time have been notified by such Guarantor or any other Person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption or such compliance is required to be made);
(6) any Taxes that would not have been so imposed, deducted or withheld if the beneficiary of the payment had presented the Notes Note for payment within 30 days after the date on which such payment or such Notes 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 Notes Note been presented on the last day of such 30-day period), ;
(7) any payment under or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes a Note to any Holder who that is a fiduciary or partnership or any person Person other than the sole beneficial owner of such paymentpayment or Note, 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 or Note would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment Note; or
(8) any combination of the Taxes with respect to which Additional Amounts are paid. items (1) through (7) above.
(b) The obligations described under this Section foregoing provisions shall survive any termination, defeasance termination or discharge of this Indenture and payment of the Notes and shall apply mutatis mutandis to any jurisdiction in which Taxing Jurisdiction with respect to any successor Person to a non-U.S. Guarantor.
(c) Each applicable non-U.S. Guarantor shall also make any applicable withholding or deduction and remit the Issuer full amount deducted or withheld to the relevant authority in accordance with applicable law. Each applicable non-U.S. Guarantor shall furnish to the Trustee, within 30 days after the date on which the payment of any Taxes deducted or withheld is due pursuant to applicable law, certified copies of tax receipts or, if such tax receipts are not reasonably available to such non-U.S. Guarantor, such other documentation that provides reasonable evidence of such payment by such non-U.S. Guarantor. Copies of such receipts or other documentation shall be made available to the Holders or the Paying Agent, as applicable, upon request.
(d) At least 30 days prior to each date on which any payment under or with respect to any Notes is due and payable, unless such obligation to pay Additional Amounts arises after the 30th day prior to such date, in which case it shall be promptly paid thereafter, if any non-U.S. Guarantor shall be obligated to pay Additional Amounts with respect to such payment, such non-U.S. Guarantor shall deliver to the Trustee and the 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 such Trustee and Paying Agent to pay such Additional Amounts to Holders of such Notes on the payment date. Each Officer’s Certificate shall be relied upon until receipt of a further Officer’s Certificate addressing such matters.
(e) Whenever in this Indenture there is mentioned, in any context, the payment of principal, premium, if any, interest or of any other amount payable under or with respect to any Note, 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.
(f) The non-U.S. Guarantors 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 their respective Guarantees of the Notes, this Indenture or any other document or instrument in relation thereto, excluding all such taxes, charges or similar levies imposed by any jurisdiction outside the United States in which any non-U.S. Guarantor or any successor Person is organized or resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinjurisdiction in which a Paying Agent is located, and the non-U.S. Guarantors shall agree to indemnify the Holders of the Notes for any such non-excluded taxes paid by such Holders.
Appears in 1 contract
Sources: Indenture (JBS USA Holdings, Inc.)
Additional Amounts. If a Guarantor that If, following any transactions permitted by Section 5.01 of this Indenture, the Surviving Person is a Foreign Subsidiary organized other than under the laws of the United States of America, any State thereof or is a Puerto Rican corporation is required by applicable law or the District of Columbia, all payments made by the interpretation or administration thereof to withhold or deduct any amount from any payment made Surviving Person under or with respect to its Guarantee the Securities 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 government of the jurisdiction of organization or incorporation of such Guarantor the Surviving Person or any political subdivision thereof or any taxing authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”), unless the Surviving Person is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof. If the Surviving Person is so required to withhold or deduct any amount for, or on account of, such Guarantor Taxes from any payment made under or with respect to the Securities, the Surviving Person shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders each Holder (including Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders such 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 does not apply to (a1) 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, 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 a Relevant Taxing Jurisdiction (other than the mere receipt of such payment or the ownership or holding of the Notes outside of the jurisdiction Surviving Person’s country of organization or incorporation of such Security); (2) any Taxes that are imposed or withheld by reason of the Guarantorfailure by the relevant Holder or the beneficial owner of the Securities to comply with a written request of the Surviving Person addressed to such Holder, after reasonable notice, to provide certification, information, documents or other evidence concerning the nationality, residence or identity of such Holder or such beneficial owner or to make any declaration or similar claim or satisfy any other reporting requirement relating to such matters, which is required by a statute, treaty, regulation or administrative practice of the applicable Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of withholding or deduction of, all or part of such Taxes; (3) any Taxes withheld or deducted pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (or any amended or successor version of such Sections), any U.S. Treasury regulations promulgated thereunder, any official interpretations thereof or any agreements (including any law implementing any such agreement) entered into in connection with the implementation thereof; or (b4) any Taxes that are payable otherwise than by deduction or withholding from payments made under or with respect to the debt securities; (5) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental chargecharge or (6) any combination of the items (1) through (5) above; nor shall such Guarantor the Surviving Person be required to pay Additional Amounts (1a) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Notes Security for payment within 30 days after the date on which such payment or such Notes Security 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 Notes Security been presented on the last day of such 30-30 day period), or (2b) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes Security to any Holder 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 of such NotesSecurity. Upon request, the Issuer Surviving Person shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. Whenever in this Indenture, a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, or in any Security there is mentioned, in any context: (1) the payment of principal; (2) purchase prices in connection with a purchase of Securities; (3) interest; or (4) any other amount payable on or with respect to any of the Securities, such reference shall be deemed to include payment of Additional Amounts provided for in this Section 4.07 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The obligations described under this Section 4.07 shall survive any termination, defeasance termination or discharge of this Indenture and any defeasance of the Securities and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer Company or any Surviving Person is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Lazard Group LLC)
Additional Amounts. If (a) All payments made by the Company in respect of the Securities or a Guarantor that is in respect of a Foreign Subsidiary Guarantee will be made free and clear of and without withholding or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made under or with respect to its Guarantee for deduction for, or on account of of, any present or future taxTaxes unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, dutyor on account of, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) any Taxes imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such the Company or the relevant Guarantor is then incorporated or organized or resident for tax purposes or Tax purposes, any jurisdiction from or through which payment under its Guarantee on behalf of the Company or Guarantor is made or any political subdivision or governmental authority thereof or therein having power to tax (each each, a “Relevant Taxing Tax Jurisdiction”), such will at any time be required to be made from any payments made by or on behalf of the Company in respect of the Securities or the relevant Guarantor shall under its Guarantee, including payments of principal, redemption price, purchase price, interest or premium, the Company or the relevant Guarantor will pay such additional amounts (the “Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments (including payments of principal, redemption price, interest or premium) by the Holders each Holder (including Additional Amounts) after such withholding or deduction shall not be less than will equal the amount the Holders 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 the foregoing obligation to pay no Additional Amounts does not apply to will be payable with respect to:
(ai) any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant Holder or the beneficial owner of the Security or Guarantee (or between a fiduciary, settlorsettler, beneficiary, partner, member or shareholder of, or possessor of power over the relevant HolderHolder or beneficial owner, if the relevant Holder is an estate, nominee, trust trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (relevant Tax Jurisdiction, other than by the mere receipt of such payment or the ownership acquisition or holding of any Security or the Notes outside enforcement or receipt of payment under or in respect of any Security or Guarantee;
(ii) any Taxes imposed or withheld as a result of the jurisdiction of organization or incorporation failure of the Guarantor); Holder or (b) beneficial owner of any estateSecurity or Guarantee to comply with any written request, inheritancemade to that Holder or beneficial owner within a reasonable period before any such withholding or deduction would be payable, giftby the Company or a Guarantor to provide timely or accurate information concerning the nationality, sales, excise, transfer, personal property tax residence or identity of such Holder or beneficial owner or to make any valid or timely declaration or similar taxclaim or satisfy any certification information or other reporting requirements (in each case, assessment to the extent such Holder or governmental charge; nor shall such Guarantor be beneficial owner is legally eligible to do so), which is required or imposed by a statute, treaty, regulation or administrative practice of the relevant Tax Jurisdiction as a precondition to pay Additional Amounts (1) if exemption from, or reduction in the payment could have been made without such rate of deduction or withholding if the beneficiary of such Taxes;
(iii) any Taxes that are imposed or withheld as a result of the payment had presented the Notes presentation of any Security or Guarantee for payment within (where presentation is required) more than 30 days after the date on which such relevant payment is first made available for payment to the Holder or such Notes became due and payable or the date on which payment thereof is duly provided for, whichever is later beneficial owner (except to the extent that the Holder or beneficial owner would have been entitled to Additional Amounts had the Notes Security been presented on the last day of such 30-30 day period);
(iv) any estate, inheritance, gift, sale, excise, transfer, personal property or similar Tax or assessment;
(2v) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to any Security or Guarantee;
(vi) any Taxes that are imposed or withheld as a result of the presentation of any Security or Guarantee for payment by or on behalf of principal of (a Holder or premium, if any, on) or interest on such Notes to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such paymentSecurities or Guarantee who would have been able to avoid such withholding or deduction by presenting the relevant Security or Guarantee to, or otherwise accepting payment from, another paying agent;
(vii) any Taxes that are imposed or withheld pursuant to Sections 1471 through 1474 of the extent that Code, any regulations promulgated thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a beneficiary or settlor 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; or
(viii) any combination of items (i) through (vii) above.
(b) The relevant Guarantor will pay when due any present or future stamp, transfer, court or documentary Taxes or any other excise or property Taxes that arise in a Tax Jurisdiction with respect to the initial execution, delivery or registration of the Guarantee or any other document or instrument relating thereto (other than the Securities).
(c) The relevant Guarantor will use reasonable efforts to furnish to the Holders, within a reasonable period of time after the due date for the payment of any Taxes so deducted or withheld pursuant to applicable law, either certified copies of Tax receipts evidencing such fiduciarypayment by such Guarantor (in such form as provided in the ordinary course by the relevant Tax Jurisdiction and as is reasonably available to the Guarantor), a member or, if such receipts are not obtainable, other evidence of such a partnership or the beneficial owner of payments by 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 Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation Guarantor reasonably satisfactory to the Trustee evidencing Holders. Notwithstanding the payment of foregoing or anything herein to the Taxes with respect to which contrary, no Additional Amounts are paid. The obligations described or other amounts due under this Section 4.17 shall survive any termination, defeasance or discharge of be paid in cash on Series B Securities until after all such amounts due under this Indenture and Section 4.17 on Series A Securities shall apply mutatis mutandis to any jurisdiction have been paid in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or thereinfull.
Appears in 1 contract
Additional Amounts. If a Guarantor that is a Foreign Subsidiary (a) All payments of principal and interest in respect of the Notes shall be made without withholding or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made under or with respect to its Guarantee deduction for or on account of any present or future taxtaxes, dutyduties, levylevies, impostcontributions, assessment withholdings, taxes on fund transfers, imposts, assessments or other governmental charge charges (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) imposed of whatever nature imposed, levied, collected, withheld or levied assessed by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision Argentina or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from organization of which Argentina is or through which payment under its Guarantee is made will become a member (each a “Relevant Taxing JurisdictionTaxes”), unless such Guarantor Taxes are required to be withheld or deducted by law or the official interpretation or application thereof. In the event any such Taxes are required to be withheld or deducted by law or the official interpretation or application thereof, the Company shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received will result in receipt by the Holders (including Additional Amounts) after of such amounts as would have been received by them had no such withholding or deduction shall not be less than the amount the Holders would have received if been required, except that no such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply shall be payable with respect to any payment on any such Note:
(ai) any to the extent that Taxes that would not have been so imposed but for the existence of any present or former a connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor beneficial owner of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust or corporation) such Note and the Relevant Taxing Jurisdiction (Argentina other than the mere holding of such Note and the receipt of payments with respect to such payment Note;
(ii) to the extent of Taxes which would not have been imposed but for any failure to comply with certification, information or other reporting requirements concerning the ownership nationality, residence or holding identity of the Holder or beneficial owner of such Notes outside requested by the Company at least thirty (30) days prior to the applicable payment date, if such compliance is required by statute or regulation of the jurisdiction Argentina or of organization any political subdivision or incorporation taxing authority thereof or therein as a precondition to relief or exemption from such Taxes;
(iii) in respect of the Guarantor); or (b) any estate, asset, inheritance, gift, sales, excise, transfer, personal property transfer or any similar tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required or
(iv) to pay Additional Amounts (1) if the payment could have been made without such deduction or withholding if the beneficiary extent of the payment had Taxes with respect to a Note presented the Notes for payment within 30 more than thirty (30) days after the date on which such payment or such Notes became due and payable or the date on which payment thereof is duly provided forfor and notice thereof given to Holders, whichever is later (occurs later, except to the extent that the Holder of such Note would have been entitled to such Additional Amounts had the Notes been presented on the last day of presenting such Note for payment on any date during such 30-day period), .
(b) Any reference in this Indenture or (2) with respect in any Note to principal or interest shall be deemed also to refer to any payment Additional Amounts which may be payable under the undertakings referred to in this Section.
(c) The Company shall pay all stamp or other documentary taxes or other duties of principal of (or premiuma similar nature, if any, on) or interest on such Notes to any Holder 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 which may be imposed by Argentina 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 Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized United States or any political subdivision or taxing authority or agency thereof or thereintherein with respect to the execution and delivery of this Indenture or the issuance of the Notes hereunder. The Company shall also indemnify the Holders from and against all stamp, issue, registration, documentary court taxes or other similar taxes and duties, including interest and penalties, paid by any of them in Argentina in connection with any action taken by the Trustee or the Holders to enforce the obligations of the Company under such Notes.
Appears in 1 contract
Additional Amounts. If a Guarantor that is a Foreign Subsidiary All payments made by or is a Puerto Rican corporation is required by applicable law on behalf of the Issuers or by any of the interpretation or administration thereof to withhold or deduct any amount from any payment made Guarantors under or with respect to its the Notes or any Note Guarantee for will be made free and clear of and without withholding or deduction for, or on account of of, any present or future taxTaxes unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, dutyor on account of, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) any Taxes imposed or levied by or on behalf of (1) any jurisdiction in which the government of the jurisdiction of organization Issuers or incorporation of such any Guarantor (including any successor entity), is then incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which payment is made by or on behalf of the Issuers or any authority Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or agency any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”), will at any time be required to be made from any payments under or thereof having power with respect to taxthe Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium the Issuers or the relevant Guarantor, as applicable, will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each holder or Beneficial Owner of Notes after such withholding, deduction or imposition will equal the respective amounts of cash that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts will be payable with respect to:
(a) any Taxes, to the extent such Taxes would not have been imposed but for the Holder or the Beneficial Owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or within possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being a citizen or resident or national of, incorporated in the relevant Tax Jurisdiction in which such Taxes are imposed or having any other present or former connection with the relevant Tax Jurisdiction other than the acquisition or holding of such Notes, the exercise or enforcement of rights under such Note or this Indenture or under a Note Guarantee of a Guarantor or the receipt of payments in respect of such Note or a Note Guarantee of a Guarantor;
(b) 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 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);
(c) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(d) any Note presented for payment (where presentation is required) by or on behalf of a Holder of Notes 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;
(e) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or with respect to any Note Guarantee of a Guarantor;
(f) 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 Issuers’ reasonable written request addressed to the Holder or Beneficial Owner at least 60 days before any such withholding or deduction would be payable to the holder or Beneficial Owner, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, 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), but in each case, only to the extent the Holder or Beneficial Owner is legally entitled to provide such certification or documentation;
(g) any Taxes imposed or withheld by reason of the failure of the holder or Beneficial Owner of the Notes to comply with the requirements of Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “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 U.S. Treasury Regulations issued thereunder or any official interpretation thereof or any agreement entered into pursuant to Section 1471(b) of the Code;
(h) any withholding Tax imposed by the United States or a political subdivision thereof; or
(i) any combination of clauses (a) through (h) above. In addition to the foregoing, the Issuers and any Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or 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 jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, this Indenture, any Note Guarantee of a Guarantor or any other document referred to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Notes or any Note Guarantee of a Guarantor. If the Issuers or any Guarantor, as the case may be, becomes aware that it or they will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or any Note Guarantee of a Guarantor, the Issuers or the relevant Guarantor, as the case may be, will deliver to the Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Issuers or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officers’ Certificates must also set forth any other information reasonably necessary to enable the Paying Agents to pay Additional Amounts to Holders on the relevant payment date. The Issuers or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officers’ Certificate as conclusive proof that such payments are necessary, and may conclusively presume that no payments are necessary unless and until it receives any such Officers’ Certificate. The Issuers or the relevant Guarantor will make all withholdings and deductions (within the time period and in the minimum amount) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuers or the relevant Guarantor will use their reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuers or the relevant Guarantor will furnish to the Trustee (or to a holder upon request), within 60 days after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Issuers or a Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity. Whenever in this Indenture or the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee of a Guarantor, 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. The above obligations will survive any termination, defeasance or discharge of this Indenture, any transfer by a holder or Beneficial Owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which such any successor Person to the Issuers or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”), such Guarantor shall pay such additional amounts (“Additional Amounts”) as may be necessary so that on the net amount received by the Holders (including Additional Amounts) after such withholding or deduction shall not be less than the amount the Holders would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to (a) any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant Holder Notes (or between any Note Guarantee of 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 corporationGuarantor) and the Relevant Taxing Jurisdiction (other than the mere receipt of such payment any department or the ownership or holding of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if 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 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 that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder 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 of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Endo International PLC)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary (a) All payments required to be made by or is a Puerto Rican corporation is required by applicable law or by on behalf of the interpretation or administration thereof to withhold or deduct any amount from any payment made Issuer under or with respect to its the Notes or by or on behalf of any Guarantor under or with respect to a Note Guarantee (the Issuer or such Guarantor and, in each case, any successor thereof, making such payment, the “Payor”), will 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 (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) taxes imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or tax within any other jurisdiction in which such Guarantor any Payor is incorporated, organized or otherwise resident for tax purposes purposes, or engaged in business for tax purposes, or any jurisdiction from or through which payment under its Guarantee is made by or on behalf of such Payor (each a “Relevant Taxing Jurisdiction”), unless such Guarantor shall Payor is required to withhold or deduct such taxes by law or regulation.
(b) If a Payor is so required to withhold or deduct any amount for or on account of taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or a Note Guarantee, as applicable, such Payor will be required to pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders any Holder (including Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders Holder or beneficial owner would have received if such Taxes taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to to:
(a1) any Taxes taxes that would not have been (or would not be required to be) so imposed imposed, withheld, deducted or levied but for the existence of any present or former connection between the relevant Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over over, the relevant HolderHolder or beneficial owner, if the relevant Holder or beneficial owner is an estate, nominee, trust trust, partnership, company or corporation) and the Relevant Taxing Jurisdiction Jurisdiction, including, without limitation, such Holder or beneficial owner being or having been a citizen, domiciliary, national or resident, including for tax purposes, thereof, or being or having been present or engaged in a trade or business therein or having or having had a permanent establishment therein (other than any connection arising solely from the mere receipt of such payment or the ownership acquisition or holding of any Note, the Notes outside receipt of any payments in respect of such Note or Note Guarantee or the jurisdiction exercise or enforcement of organization rights under a Note or incorporation of the GuarantorNote Guarantee); (2) any taxes that would not have been (or would not be required to be) so imposed, withheld, deducted or levied but for the fact that the payment is made in a non-cooperative State or territory within the meaning the Relevant Taxing Jurisdiction’s applicable law, such law including, without limitation, any local, regional, national, international law considered as binding in the Relevant Taxing Jurisdiction; (b3) any estate, inheritance, gift, sales, excise, sales transfer, personal property or similar tax or similar tax, assessment assessment; (4) any taxes which are payable other than by withholding or governmental chargededuction from payments made under or with respect to the Notes or any Note Guarantee; nor shall such Guarantor (5) any taxes that would not have been (or would not be required to pay Additional Amounts (1be) imposed, withheld, deducted or levied if 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 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 that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder 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 any Note or interest therein (to the Additional Amounts had extent such beneficiary, settlor, member Holder or beneficial owner been is legally eligible to do so) (i) complied with all reasonable written requests by the actual Payor (made at a time that would enable the Holder or beneficial owner acting reasonably to comply with such request) to provide timely and accurate information or documentation concerning notably the nationality, residence (including for tax purposes) or identity of such Notes. Upon requestHolder or beneficial owner or (ii) made any declaration or similar claim or satisfy any certification, information or reporting requirement, which in the Issuer shall provide case of (i) or (ii), is required or imposed by a statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the Trustee with official receipts rate of withholding or other documentation satisfactory to the Trustee evidencing the payment deduction of, all or part of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.such taxes;
Appears in 1 contract
Sources: Indenture (Tronox Holdings PLC)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment All payments made under or with respect to its 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) (hereinafter “Taxes”) imposed or levied by or on behalf of (1) the government of United States, Germany, Luxembourg, the jurisdiction of organization or incorporation of such Guarantor United Kingdom or any political subdivision or any governmental authority thereof or agency therein or thereof having the power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or (2) any jurisdiction from or through which payment under its 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 a “Relevant Taxing Jurisdiction”), collectively, “Taxes,” unless the Issuer, 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 agency provided, however, that in determining what withholding is required by law for U.S. federal income and withholding tax purposes, the Issuer, a Guarantor or other applicable withholding agent shall be entitled to treat any payments on or in respect of the Notes or any Note Guarantee as if the Notes or any Note Guarantee were issued by a U.S. person as defined in section 7701(a)(30) of the Code. If the Issuer, any Guarantor or other applicable withholding agent 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 shall Guarantor, as the case may be, will be required to pay such additional amounts (amount — “Additional Amounts”) ” — as may be necessary so that the net amount received by the Holders (including Additional Amounts) received by each beneficial owner after such withholding or deduction shall (including any withholding or deduction on such Additional Amounts) will not be less than the amount the Holders such beneficial owner would have received if such Taxes had not been withheld or deducted; provided, A-4 however, that no Additional Amounts will be payable with respect to payments made to any beneficial owner to the foregoing extent such Taxes are imposed by reason of (i) such beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, otherwise than by the acquisition, ownership, holding or disposition of the Notes, the enforcement of rights under the Notes or under any Note Guarantee or the receipt of payments in respect of the Notes or any Note Guarantee, or (ii) such beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, 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 a Note or any Note Guarantee, a complete, correct and executed IRS Form W-8 or W-9 or successor form, as applicable, with all appropriate attachments); provided, however, that for purposes of this obligation to pay Additional Amounts, the Issuer, a Guarantor or other applicable withholding agent 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 U.S. person as defined in section 7701(a)(30) of the Code. Further, no Additional Amounts does not apply shall be payable with respect to (ai) any Taxes that would not have been so Tax imposed but for on interest by the existence United States or any political subdivision or governmental authority thereof or therein by reason of any present beneficial owner holding or former connection between 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 or (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 Code with respect to the Issuer or any Guarantor. The Issuer or 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 Holder authority as and when required in accordance with applicable law. The Issuer or Guarantor (as applicable) will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or between a fiduciary, settlor, beneficiary, member Guarantor (as applicable) of any Taxes so deducted or shareholder of, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust or corporation) and the withheld from each Relevant Taxing Jurisdiction (other than imposing such Taxes and will provide such certified copies to the mere receipt of such payment Trustee. Wherever in the Indenture or the ownership Notes or holding of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or (b) any estateNote Guarantee there are mentioned, inheritancein any context, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if 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 or such Notes became due and payable or the date on which payment thereof is duly provided forprincipal, whichever is later (except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (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 of the Notes or any Note Guarantee, such reference shall be deemed to include payment of principal of (or premium, if any, on) or interest on such Notes to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, Additional Amounts as described under this heading to the extent that a beneficiary or settlor with respect to that, in such fiduciarycontext, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiaryare, settlor, member were or beneficial owner been the actual Holder of such Noteswould be payable in respect thereof. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the Taxes 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 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 herein or 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 Additional Amounts arise in the jurisdiction in which the Issuer or new issuer is organized (or any political subdivision thereof or therein) and are paidpayable 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 described under in this Section shall Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person Paragraph 2 to the Issuer is organized or any political subdivision or taxing authority or agency thereof or thereinGuarantor shall apply to any successor(s) thereto.
Appears in 1 contract
Additional Amounts. If a (a) The Company and any Guarantor that is a Foreign Subsidiary are required to make all payments on the Notes free and clear of and without withholding or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made under or with respect to its Guarantee 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 government of the jurisdiction of organization country in which the Company or incorporation of such Guarantor and any successor thereof is organized or incorporated or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such the Company or any Guarantor is otherwise resident for tax purposes or the jurisdiction of any jurisdiction from or through which payment under its Guarantee is made Paying Agent (each each, a “Relevant Taxing Jurisdiction”), such unless the Company or a Guarantor shall or Paying Agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(b) If the Company, or any Guarantor, or a 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, the Company or any Guarantor will be required to pay such additional amounts (“Additional Amounts”) with respect to the Notes as may be necessary so that the net amount received by the Holders any Holder or beneficial owner (including Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders such Holder or beneficial owner would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to to:
(ai) 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 (or including a connection between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over over, the relevant Holderholder or beneficial owner, if the relevant Holder holder or beneficial owner is an estate, nominee, trust trust, partnership or corporation) , and the Relevant Taxing Jurisdiction Jurisdiction) including, without limiting the generality of the foregoing, such Holder or beneficial owner (other than the mere receipt of or such payment fiduciary, settlor, beneficiary, partner, member, shareholder, or the ownership or holding possessor) of the Notes outside of the jurisdiction of organization being or incorporation of the Guarantor); 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;
(bii) any estate, inheritance, gift, sales, excise, transfer, transfer or personal property tax or similar taxTaxes;
(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 avoid such withholding or deduction by presenting the relevant note to any other paying agent, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1b) if where the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Notes notes for payment within 30 days after the date on which such payment or such Notes 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 holder or beneficial owner would have been entitled to Additional Amounts had the Notes notes been presented on the last day of such 30-day period), or ;
(2iv) any Taxes imposed with respect to any payment of principal of (or premium, if any, on) or interest on such the Notes by the Company or any Guarantor to any Holder or beneficial owner who is a fiduciary or partnership or any person 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. Upon request;
(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 provide any information relating to such matters, whether required or imposed by statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of withholding or deduction of, Taxes imposed by the Relevant Taxing Jurisdiction;
(vii) any Taxes that are required to be deducted or withheld from any payment under or in respect of 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 Guarantor at the time of making any such payment;
(viii) any Taxes that are required to be deducted or withheld from 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 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 Act (Canada), the Issuer 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, (i) to (x) above.
(c) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes is due and payable (unless 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 or any Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company will deliver to the U.S. Trustee and paying agent for the affected Notes 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 U.S. Trustee or paying agent, as the case may be, to pay such Additional Amounts to 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 Company or the applicable 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 Company will provide the U.S. Trustee with official receipts or or, if notwithstanding the efforts of the Company official receipts are not obtainable, other documentation reasonably satisfactory to the Trustee U.S. Trustee, evidencing the payment of any Tax so deducted or withheld for each Relevant Taxing Jurisdiction imposing such Taxes. The Company will attach to each official receipt or other documentation a certificate stating (x) that the Taxes amount of such Tax evidenced by the official receipt or other documentation 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 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 which the 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 paid. or would be payable in respect thereof.
(f) The 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 described under this Section shall 2.13 will survive any termination, defeasance or discharge of this Indenture and shall will apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer Company or any Guarantor is organized or any political subdivision or taxing authority or agency thereof or therein.
(h) The Company and the Guarantors shall indemnify and hold harmless the Trustees for the amount of any Taxes in respect of which the Company, or any 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 Subsidiary Guarantee, including any reimbursements under this clause 2.13(h).
Appears in 1 contract
Sources: Indenture (Open Text Corp)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary (a) All payments made by or is a Puerto Rican corporation is required by applicable law on behalf of the Company or by the interpretation or administration thereof to withhold or deduct on behalf of any amount from any payment made Guarantor under or with respect to its Guarantee the 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 penalties, interest and other liabilities related thereto) (hereinafter referred to as “Taxes”) imposed or levied by or on behalf of the government of the jurisdiction Canada, any province or territory of organization or incorporation of such Guarantor Canada or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which the Company or any such Guarantor is organized, or is otherwise carrying on business in, or is otherwise resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each each, a “Relevant Taxing Jurisdiction”), unless such Person is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(b) If the Company or any Guarantor that is organized, or is otherwise carrying on business in, or is otherwise resident for tax purposes in any jurisdiction other than in the United States (each such person, a “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 a Note Guarantee, such Payor shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders a Holder or beneficial owner of Notes (including Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders such Holder or 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 the foregoing obligation obligations to pay Additional Amounts does shall not apply to (a1) any Holder or beneficial owner of Notes with which the applicable Payor does not deal at arm’s length (within the meaning of the Tax Act) at the time of the payment; (2) any Taxes to the extent such Taxes are assessed or imposed by reason of the Holder or beneficial owner of the Note being a “specified shareholder” as defined in subsection 18(5) of the Tax Act of the Payor of such payment or not dealing at arm’s length (for purposes of the Tax Act) with a “specified shareholder” of the Payor of such payment; (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 thereof; 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 between 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 fiduciarycitizen, settlor, beneficiary, member resident or shareholder ofnational thereof, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust being or corporation) and having been present or 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 or disposition of such Note or a beneficial interest therein or the enforcement of rights thereunder or the receipt of such any payment or the ownership or holding of the Notes outside of the jurisdiction of organization or incorporation of the Guarantorin respect thereof); or (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts be paid (1a) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Notes Note for payment within 30 days after the date on which such payment or such Notes 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 or beneficial owner would have been entitled to Additional Amounts had the Notes Note been presented on the last day of such 30-day period); (b) to the extent relating to Taxes imposed by reason of the Holder’s or beneficial owner’s failure to comply with any certification, documentation, information or other evidentiary requirement concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction if compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to exemption from, or a reduction in the rate of deduction or withholding of, such Taxes to which such Holder or beneficial owner is entitled and notice of such certification requirement is given 30 days prior to first time certification is required; (2c) with respect to any payment of principal of Taxes that are estate, inheritance, gift, sales, transfer, personal property or similar Taxes; (or premium, if any, ond) or interest on such Notes to any Holder who a holder which is a fiduciary or fiduciary, a partnership or any a person other than the sole beneficial owner of any such payment, to if such Taxes would not have been imposed had the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the other beneficial owner of such the payment would not have been entitled the holder of the Notes; or (e) to the extent relating to any combination of any of the above clauses in this paragraph (any such Tax in respect of which Additional Amounts had such beneficiaryare payable, settlor, member an “Indemnified Tax”).
(c) The applicable Payor shall make any required withholding or beneficial owner been deduction and remit the actual Holder of such Notesfull amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. Upon request, the Issuer Company shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations .
(d) If a Payor is or will become obligated to pay Additional Amounts under or with respect to any payment made on the Notes or a Note Guarantee, at least 30 days prior to the date of such payment (unless 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), such Payor shall deliver to the Trustee and the Paying Agent (if different) 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.
(e) 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 reference shall be deemed to include payment of Additional Amounts as described under this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The Company and the Guarantors shall indemnify and hold harmless a Holder of the 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 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, issue, registration, 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, enforcement or registration of the Notes, the Note Guarantees, this Indenture or any other document or instrument in relation thereof, or the receipt of any payments with respect to the Notes or any Note Guarantees and the Company and the Guarantors shall indemnify the Trustee and Holders of Notes for any such amounts (including penalties, interest and other liabilities related thereto) paid by such Holders.
(h) The obligations described in this Section 2.13 will survive any termination, defeasance or discharge of this Indenture or any transfer by a Holder or beneficial owner of a Note and shall will apply mutatis mutandis to any successor Person to any Payor and to any jurisdiction in which any such successor Person to the Issuer is organized or is otherwise resident or doing business for tax purposes or any political subdivision jurisdiction from or taxing authority through which payment is made by or agency thereof or thereinon behalf of such successor.
Appears in 1 contract
Sources: Indenture (Aris Mining Corp)
Additional Amounts. If a Guarantor (a) All payments that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made Issuer makes under or with respect to its Guarantee the 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 (hereinafter collectively, “Taxes”) imposed or levied on such payments by or on behalf of any jurisdiction (other than the government United States, any state thereof or the District of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction Columbia) in which such Guarantor the Issuer is organized, resident or doing business for tax purposes or any jurisdiction from or through which it (or its agents, including the Paying Agent) makes any payment under its Guarantee is made on this Note or by or within any department, political subdivision or governmental authority of or in any of the foregoing having power to tax (each each, a “Relevant Taxing Jurisdiction”), such Guarantor unless the Issuer 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 of law. If the Issuer or other applicable withholding agent is 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 this Note, the Issuer shall pay such additional amounts (“Additional Amounts”) as may be necessary so to ensure that the net amount received by each beneficial owner of the Holders (including Additional Amounts) Notes after such withholding or deduction shall (including any withholding or deduction in respect of any Additional Amounts) will not be less than the amount the Holders beneficial owner would have received if such Taxes had not been withheld or deducted; provided.
(b) The Issuer shall not, however, that the foregoing obligation to pay Additional Amounts does not apply to in respect or on account of:
(ai) any Taxes, to the extent such Taxes that would not have been so are imposed but for or levied by a Relevant Taxing Jurisdiction by reason of the existence of any Holder’s or beneficial owner’s 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 with such Relevant Taxing Jurisdiction (other than the mere receipt, ownership, holding or disposition of this Note, or by reason of the receipt of such payment any payments in respect of any Notes, or the ownership exercise or holding enforcement of rights under any Notes);
(ii) any Taxes to the extent such Taxes are imposed or withheld by reason of the Notes outside failure of the jurisdiction Holder or beneficial owner of organization this Note, following the Issuer’s written request addressed to the Holder or incorporation beneficial owner, to comply with any certification, identification, information or other reporting requirements (to the extent such holder or beneficial owner is legally eligible to 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 Guarantorrate of deduction or withholding of, such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction); or ;
(biii) any estate, inheritance, gift, sales, excisetransfer, transfercapital gains, wealth, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts Taxes;
(1iv) if the payment could have been made without such any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to this Notes;
(v) any Tax imposed on or with respect to any payment by the Issuer to the Holder if such Holder is a fiduciary or partnership or Person other than the beneficiary sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payment had such beneficial owner been the holder of such Note;
(vi) 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 presenting the relevant Notes to another paying agent in a member state of the payment had presented European Union;
(vii) any Taxes, to the Notes extent such Taxes were imposed as a result of the presentation of a Note for payment within (where presentation is required) more than 30 days after the date on which such relevant payment or such Notes became due and payable or is first made available to the date on which payment thereof is duly provided for, whichever is later Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Notes 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 other Directive implementing the conclusions of the ECOFIN Council meetings of November 26 and 27, 2000 on the taxation of savings income or 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 any amended or successor version that is 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 1471(b)(1) of the Internal Revenue Code of 1986 as of the Issue Date (or any amended or successor version described above), and including (for the avoidance of doubt) any intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the foregoing; or
(x) any combination of the foregoing.
(c) If the Issuer is the applicable withholding agent, the Issuer shall (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to this Note is due and payable, if the Issuer 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 is due and payable, in which case it will be promptly thereafter), the Issuer shall deliver to the Trustee, with a copy to the Paying Agent, an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuer 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. Such Additional Amounts may be paid by the Issuer, at its option, in the form of cash or Additional Notes. To the extent that the Issuer or any applicable withholding agent is required by law or by the interpretation or administration thereof to make any deduction or withholding from any payment of interest on this Note or any payment of an Additional Amount which, in either case, is made through the issuance of Additional Notes, the foregoing provisions shall apply with respect to such withholding or deduction requirement, mutatis mutandis. In addition, the Issuer 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 other document or instrument referred to thereunder, or (2ii) the receipt of any payments under or with respect to, or enforcement of, this Note. Upon written request, the Issuer will furnish to the Trustee or the Principal Paying Agent or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by the Issuer 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 the Issuer to obtain such receipts, the same are not obtainable, the Issuer will provide the Trustee or such Holder with other evidence reasonably satisfactory to the Trustee or holder of such payments by the Issuer. If requested by the Trustee or the Principal Paying Agent, the Issuer will provide to the Trustee or the Principal Paying Agent, as the case may be, such information as may be reasonably available to the Issuer (and not otherwise in the possession of the Trustee or the Principal Paying Agent, as applicable) to enable 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 of (or principal, premium, if any, on) or interest on such Notes to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, to the extent that a beneficiary amount payable under or settlor with respect to this Note, 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 of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing reference includes the payment of the Taxes with respect to which Additional Amounts are paid. Amounts, if applicable.
(f) The obligations described under this Section shall preceding provisions will survive any termination, defeasance or discharge of this the Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to any of the Issuer is organized organized, resident or doing business for tax purposes or any jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on this Note and any department, political subdivision or taxing governmental authority of or agency thereof or thereinin any of the foregoing having the power to tax.
Appears in 1 contract
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or (a) Any payments made by the interpretation or administration thereof to withhold or deduct any amount from any payment made Issuers under or with respect to its Guarantee the 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 penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) of whatever nature imposed or levied by or on behalf of the government Mexico or of the jurisdiction of organization any subdivision thereof or incorporation of such Guarantor or any political subdivision or by any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”hereinafter "Taxes"), such Guarantor unless either Issuer is required to withhold or deduct Taxes by law, rule or regulation or by the interpretation or administration thereof. If either Issuer 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, then the Issuers shall pay such additional amounts (“"Additional Amounts”") as may be necessary necessary, so that the net amount received on the respective due dates of such amounts by the Holders each Holder (including Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders such Holder would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to .
(b) Notwithstanding clause (a) of this Section 4.21, no such Additional Amounts shall be payable with respect to:
(i) any Taxes that would not have been so which are imposed but for on, or deducted or withheld from, payments made to the Holder or beneficial owner of a Note because of the existence of any present or former connection between the relevant Holder or beneficial owner of the Notes (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over the relevant Holderover, such Holder or beneficial owner, if the relevant such Holder or beneficial owner is an estate, nominee, a trust or corporationa partnership) and the Relevant Taxing Jurisdiction (other than Mexico, except for a connection relating to or otherwise arising from the mere ownership of, or receipt of payment under, such payment Note or the ownership exercise of rights under such Note or holding the Indenture (personally or through the Trustee);
(ii) any Taxes that are imposed on, or withheld or deducted from, payments made to the Holder or beneficial owner of a Note to the extent such Taxes would not have been so imposed, deducted or withheld but for the failure by such Holder or beneficial owner of such Note to comply with any certification, identification, information, documentation or other reporting requirement concerning the nationality, residence or identity of the Holder or beneficial owner of such Note if (1) such compliance is required or imposed by a statute, treaty, regulation, ruling or administrative practice in order to make any claim for exemption from, or reduction in the rate of, the imposition, withholding or deduction of any Taxes; and (2) at least 60 days prior to the first payment date with respect to which the Issuers shall apply this clause (ii), the Issuers shall have notified such Holders or beneficial owners of the Notes outside in writing that such Holders and beneficial owners of the jurisdiction of organization or incorporation of the Guarantor); or (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor Notes will be required to provide such information or documentation; provided, however, that the Issuers' obligation to pay Additional Amounts shall apply and the limitations set forth in this clause (1ii) shall not apply if such Holder or beneficial owner of the payment could have been made without such deduction Notes as the case may be, satisfies the certification or withholding if the beneficiary reporting requirement described in this clause (ii) within 30 days of the payment had presented the Notes for payment within 30 days after the date on which such payment 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 that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder 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 of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.unless CR US has already
Appears in 1 contract
Sources: Indenture (Club Regina Resorts Inc)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary (a) All payments made by or is a Puerto Rican corporation is required by applicable law or by on behalf of the interpretation or administration thereof to withhold or deduct any amount from any payment made Issuers under or with respect to its the Notes and that any Guarantor makes under or with respect to any Guarantee 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 charges (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (hereinafter collectively, “Taxes”) imposed or levied by or on behalf of Canada, the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to taxUnited States, or within any other jurisdiction in which such either Issuer or any Guarantor is incorporated, organized or otherwise resident or engaged in or carrying on business for tax purposes or any jurisdiction from or through which either of the Issuers, any Guarantor or any of their paying agents makes any payment under its Guarantee is made on the Notes or Guarantee, or by, in each case any political subdivision or taxing authority or agency thereof or therein (each each, a “Relevant Taxing Jurisdiction”), unless withholding or deduction is then required by law. If either Issuer or any Guarantor or any other applicable withholding agent is 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 Guarantee, such Guarantor shall Issuer or such Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary so to ensure that the net amount received by each Holder or beneficial owner of the Holders (including Additional Amounts) Notes after such withholding or deduction shall (including any withholding or deduction attributable to the Additional Amounts) will be not be less than the amount the Holders Holder or beneficial owners would have received if such Taxes had not been required to be withheld or deducted; provided.
(b) Neither the Issuers nor any Guarantor will, however, that the foregoing obligation to pay Additional Amounts does not apply to in respect or on account of: (a1) any Taxes that would not have been so imposed but for by reason of the existence of any present Holder or former connection between the relevant Holder beneficial owner (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over the relevant Holderover, such Holder or beneficial owner, if the relevant such Holder or beneficial owner is an estate, nomineetrust, trust partnership, limited liability company or corporation) and being considered as having a present or former connection (including, but not limited to, citizenship, nationality, residence, domicile, incorporation, 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 such Relevant Taxing Jurisdiction)to the Relevant Taxing Jurisdiction (other than any connection arising solely from the mere acquisition, ownership or disposition of the Notes, the receipt of such payment payments under or with respect to the Notes or any Guarantee, or the ownership exercise or holding enforcement of rights under or with respect to the Notes, this Indenture or any Guarantee); (2) any Taxes that are imposed or withheld by reason of the Notes outside failure of the jurisdiction Holder or beneficial owner of organization Notes, following the Issuers’ written request addressed to the Holder (and made at a time that would enable the Holder or incorporation 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 Guarantee 148 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, as a precondition to exemption from, or reduction in the Guarantorrate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction), but in each case only to the extent that the Holder or beneficial owner, as the case may be, is legally eligible to provide such certification; or (b3) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental chargeTaxes; nor shall such Guarantor be required to pay Additional Amounts (14) if the payment could have been made without such any Tax which is payable otherwise than by deduction or withholding if from payments made under or with respect to the beneficiary Notes; (5) any Canadian Taxes paid or payable by reason of (i) the Holder, beneficial owner or other recipient of the amount not dealing at arm’s length with an Issuer or a Guarantor for the purposes of the Income Tax Act (Canada) and the regulations thereunder (the “Canadian Tax Act”), or (ii) the Holder or beneficial owner being, or not dealing at arm’s length with, a “specified shareholder” of an Issuer for the purposes of subsection 18(5) of the Canadian Tax Act; (6) any Canadian Taxes to the extent such Taxes would not have been imposed but for such Holder, beneficial owner or other recipient of the amount being an entity in respect of which an Issuer or a Guarantor is a “specified entity” (as defined in subsection 18.4(1) of the Canadian Tax Act) or substantially analogous provisions enacted as an amendment to the Tax Act in respect of such Issuer or Guarantor; (7) any Tax imposed on or with respect to any payment by the Issuers 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 presented the beneficiary, partner or other beneficial owner directly held the Note; (8) 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 within on a date more than 30 days after the date on which such payment or such Notes became due and payable or the date on which payment thereof is duly provided for, whichever is later (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; (9) 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 European Council Directive implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the last day taxation of such 30-day periodsavings income or any law
(c) The Issuers and each Guarantor, if they are applicable withholding agents (or are otherwise required to withhold amounts under applicable law), will (i) make such withholding or deduction required by applicable law and (2ii) remit the full amount deducted or withheld to the relevant taxing authority in accordance with applicable law.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to any payment of principal of (or premiumthe Notes is due and payable, if any, on) or interest on such Notes the Issuers and any Guarantor will be obligated to any Holder 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 pay Additional Amounts with respect to such fiduciary, a member of payment (unless such a partnership or obligation to pay Additional Amounts arises after the beneficial owner of such payment would not have been entitled 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 Issuers will deliver to the Trustee an Officer’s Certificate stating that such Additional Amounts had will be payable and the amounts so payable and will set forth such beneficiaryother information (other than the identities of Holders and beneficial owners) necessary to enable the Trustee or Paying Agent, settloras the case may be, member or to pay such Additional Amounts to Holders and beneficial owner been owners on the actual Holder of relevant payment date. The Trustee will make such payments in the same manner as any other payments on the Notes. Upon request, the Issuer shall The Issuers will provide the Trustee with official receipts or other documentation reasonably satisfactory to the Trustee evidencing payment of such Additional Amounts.
(e) Upon request, the Issuers 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 or other evidence of the payment by the Issuers or such Guarantor, as the case may be, of any Taxes imposed or levied by a Relevant Taxing Jurisdiction.
(f) The Issuers and each Guarantor will pay any present or future stamp, issue, registration, court documentation, excise or property taxes or other similar taxes, charges and duties, including interest, additions to tax and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the Taxes receipt of any payment under or with respect to which Additional Amounts are paid. the Notes or any Guarantee, the execution, issue, delivery or registration of the Notes, any Guarantee or this Indenture or any other document or instrument referred to thereunder and any such taxes,
(g) The obligations described under this Section shall preceding provisions will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person person to the Issuer Issuers or any Guarantor is organized organized, incorporated or otherwise resident or engaged in or carrying on business for tax purposes or any jurisdiction from or through which either of the Issuers, any Guarantor or any of their paying agents makes any payment on the Notes or Guarantee and any political subdivision or taxing authority or agency thereof or therein.. ARTICLE IV
Appears in 1 contract
Additional Amounts. If a Guarantor that (a) The Issuer, which shall include any Successor Company (as such term is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by defined in Section 5.01(a)(i) of the interpretation or administration thereof to withhold or deduct any amount from any payment made Indenture), shall make all its payments under or with respect to its Guarantee the Securities and each Note Guarantor, which shall include any Successor Guarantor (as such term is defined in the Indenture), shall make all payments under or with respect to the Note 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 government of the jurisdiction of organization or incorporation of such Guarantor Cayman Islands or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor it is organized or is otherwise resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “"Relevant Taxing Jurisdiction”"), such unless the Issuer or any Note Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If the Issuer or 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 or the Note Guarantees, the Issuer or the applicable Note Guarantor shall pay such additional amounts (“"Additional Amounts”") as may be necessary so that the net amount received by the Holders each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount the Holders such Holder would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does shall not apply to (a1) 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, 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 of the Notes outside of the jurisdiction Cayman Islands of organization such Securities but including, without limitation, such relevant Holder (or incorporation of the Guarantorsuch 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 a trade or business therein or having or having had a permanent establishment therein); or (b2) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; (3) any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of the Securities to comply with a request of the Issuer or any Note Guarantor, as the case may be, addressed to the Holder (x) to provide information, documents or other evidence concerning the nationality, residence or identity of the Holder or such beneficial owner or (y) to make and deliver any declaration or other similar claim (other than a claim for refund of a tax, assessment or other governmental charge withheld by the Issuer) or satisfy any information or reporting requirements, which, in the case of (x) or (y), is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge or (4) any tax, assessment or other governmental charge that is payable otherwise than by withholding from payment of principal of, premium, if any, or interest on such Securities; nor shall such Guarantor the Issuer or any Note Guarantor, as applicable, be required to pay Additional Amounts (1a) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Notes Securities for payment within 30 days after the date on which such payment or such Notes 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 holder would have been entitled to Additional Amounts had the Notes Securities been presented on the last day of such 30-day period), (b) if, at the election of the relevant Holder, the payment of principal of (or premium, if any, on) or interest on such Securities could have been made through another paying agent without such deduction or withholding, or (2c) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes Securities to any Holder who is a fiduciary 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 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 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 holder of such Notes. Upon request, the Securities.
(b) The Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. .
(c) Whenever in the Indenture or in the Securities there is mentioned, in any context: (1) the payment of principal; (2) purchase prices in connection with a purchase of Securities; (3) interest; or (4) any other amount payable on or with respect to any of the Securities, such reference shall be deemed to include payment of Additional Amounts as required under this paragraph 7 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(d) The Issuer shall pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies and other duties (including interest and penalties) that arise in any jurisdiction from the execution, delivery, enforcement or registration of the Securities, this Indenture or any other document or instrument in relation thereof, or the receipt of any payments with respect to the Securities, excluding such taxes, charges or similar levies imposed by any jurisdiction outside of the Cayman Islands or the United States (or any political subdivision or taxing authority of either jurisdiction), the jurisdiction of incorporation of any successor of the Issuer, any jurisdiction through which payment is made or in which a paying agent is located or any jurisdiction in which the Issuer is organized or engaged in business for tax purposes, and the Issuer will agree to indemnify the Holders for any such taxes paid by such Holders.
(e) The obligations described arising under this Section paragraph shall survive any termination, defeasance or discharge of this Indenture and shall will apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer or any Note Guarantor is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Seagate Technology Malaysia Holding Co Cayman Islands)
Additional Amounts. If a Guarantor (a) All payments that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made Issuers make under or with respect to its Guarantee the Notes or that the Guarantors make under or with respect to the 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 (hereinafter collectively, “Taxes”) imposed or levied on such payments by or on behalf of any jurisdiction (other than the government United States, any state thereof or the District of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction Columbia) in which such any Issuer or Guarantor is incorporated or resident or doing business for tax purposes or any jurisdiction from or through which any of the foregoing makes any payment under its Guarantee is made on the Notes or by or within any department or political subdivision or governmental authority of or in any of the foregoing having power to tax (each each, a “Relevant Taxing Jurisdiction”), unless such Issuer or 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 of law. If an Issuer, Guarantor or other applicable withholding agent is 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 Guarantee, such Issuer or Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as may be necessary so to ensure that the net amount received by the Holders (including Additional Amounts) each beneficial owner, after such withholding or deduction shall (including any withholding or deduction in respect of any Additional Amounts) will not be less than the amount the Holders 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 the foregoing obligation to pay Additional Amounts does not apply to (a) any Taxes that would not have been so imposed but for the existence of any present in respect or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, member or shareholder on account 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 of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if 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 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 that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder 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 of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.:
Appears in 1 contract
Additional Amounts. If a Guarantor that is a Foreign Subsidiary All payments made by or is a Puerto Rican corporation is required by applicable law on behalf of the Issuers or by any of the interpretation or administration thereof to withhold or deduct any amount from any payment made Guarantors under or with respect to its the Notes or any Note Guarantee for will be made free and clear of and without withholding or deduction for, or on account of of, any present or future taxTaxes unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, dutyor on account of, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) any Taxes imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or (1) any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such the Issuers or any Guarantor (including any successor entity), is then incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which payment under its Guarantee is made by or on behalf of the Issuers or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Relevant Taxing Tax Jurisdiction”), such Guarantor shall will at any time be required to be made from any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium the Issuers or the relevant Guarantor, as applicable, will pay such additional amounts (the “Additional Amounts”) as may be necessary so in order that the net amount amounts received and retained in respect of such payments by each Holder or beneficial owner of Notes after such withholding, deduction or imposition will equal the Holders (including Additional Amounts) after respective amounts of cash that would have been received and retained in respect of such payments in the absence of such withholding or deduction shall not be less than the amount the Holders would have received if such Taxes had not been withheld or deducteddeduction; provided, however, that the foregoing obligation to pay no Additional Amounts does not apply to will be payable with respect to:
(a) any Taxes, to the extent such Taxes that would not have been so imposed but for the existence Holder or the beneficial owner of any present or former connection between the relevant Holder Notes (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over over, the relevant Holder, if the relevant Holder is an estate, trust, nominee, trust partnership, limited liability company or corporation) and being a citizen or resident or national of, incorporated in the Relevant Taxing relevant Tax Jurisdiction (in which such Taxes are imposed or having any other present or former connection with the relevant Tax Jurisdiction other than the mere receipt of such payment or the ownership acquisition or holding of such Notes, the exercise or enforcement of rights under such Notes outside or this Indenture or under a Note Guarantee of a Guarantor or the jurisdiction receipt of organization payments in respect of such Notes or incorporation a Note Guarantee of the a Guarantor); or ;
(b) any estateTaxes, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall to the extent such Guarantor be required to pay Additional Amounts (1) if the payment could have been made without such deduction or withholding if the beneficiary Taxes were imposed as a result of the payment had presented the Notes presentation of a Note for payment within (where presentation is required) more than 30 days after the date on which such relevant payment or such Notes became due and payable or is first made available for payment to the date on which payment thereof is duly provided for, whichever is later Holder (except to the extent that the Holder or beneficial owner would have been entitled to Additional Amounts had the Notes Note been presented on the last day of such 30-30 day period);
(c) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(d) any Taxes withheld, deducted or imposed on a payment to an individual and that are 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 November 26 and 27, 2000 on the taxation of savings income, or any law implementing or complying with or introduced in order to conform to, such directive;
(2e) any Note presented for payment (where presentation is required) by or on behalf of a Holder of Notes 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;
(f) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or with respect to any Note Guarantee of a Guarantor;
(g) 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 Issuers’ reasonable written request addressed to the Holder or beneficial owner at least 60 days before any such withholding or deduction would be payable to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, 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), but in each case, only to the extent the Holder or beneficial owner is legally entitled to provide such certification or documentation;
(h) any Taxes imposed or withheld by reason of the failure of the Holder or beneficial owner of the Notes to comply with the requirements of Sections 1471 through 1474 of the 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 U.S. Treasury Regulations issued thereunder or any official interpretation thereof or any agreement entered into pursuant to Section 1471(b) of the Code;
(i) any withholding Tax imposed by the United States or a political subdivision thereof; or
(j) any combination of clauses (a) through (i) above. In addition to the foregoing, the Issuers and any Guarantors will also pay and indemnify the Holders for any present or future stamp, issue, registration, value added, transfer, court or 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 jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, this Indenture, any Note Guarantee of a Guarantor or any other document referred to herein or therein, or the receipt of any payments with respect thereto, or enforcement of any of the Notes or any Note Guarantee of a Guarantor. If the Issuers or any Guarantor, as the case may be, becomes aware that it or they will be obligated to pay Additional Amounts with respect to any payment of principal of (under or premium, if any, on) or interest on such Notes to any Holder 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 fiduciarythe Notes or any Note Guarantee of a Guarantor, a member of such a partnership the Issuers or the beneficial owner of such payment would not have been entitled relevant Guarantor, as the case may be, will deliver to the Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts had such beneficiaryarises after the 30th day prior to that payment date, settlor, member in which case the Issuers or beneficial owner been the actual Holder of such Notesrelevant Guarantor shall notify the Trustee promptly thereafter) an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. Upon request, The Officers’ Certificate must also set forth any other information reasonably necessary to enable the Issuer shall Paying Agents to pay Additional Amounts to Holders on the relevant payment date. The Issuers or the relevant Guarantor will provide the Trustee with official receipts or other documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officers’ Certificate as conclusive proof that such payments are necessary, and may conclusively presume that no payments are necessary unless and until it receives any such Officers’ Certificate. The Issuers or the relevant Guarantor will make all withholdings and deductions (within the time period and in the minimum amount) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuers or the relevant Guarantor will use their reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuers or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), within 60 days after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Issuers or a Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity. Whenever in this Indenture or the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee of a Guarantor, such mention shall be deemed to which include mention of the payment of Additional Amounts are paidto the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The above obligations described under this Section shall will survive any termination, defeasance or discharge of this Indenture Indenture, any transfer by a Holder or beneficial owner of its Notes, and shall apply will apply, mutatis mutandis mutandis, to any jurisdiction in which any successor Person to the Issuer is organized Issuers or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes (or any Note Guarantee of a Guarantor) and any department or political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Endo International PLC)
Additional Amounts. If a In the event that any Guarantor that is a Foreign Subsidiary becomes obligated to make payments in respect of the Notes, such Guarantor will make all payments in respect of the Notes without withholding or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made under or with respect to its Guarantee deduction for or on account of any present or future tax, duty, levy, impost, assessment taxes or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) duties of whatever nature imposed or levied by way of withholding or deduction at source by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”)Jurisdiction unless such withholding or deduction is required by law. In the event such withholding or deduction is required by law, such Guarantor shall will pay to the Holders of the Notes such additional amounts (the “Additional Amounts”) as may shall be necessary so in order that the net amount amounts received by the Holders (including Additional Amounts) such Holders, after such withholding or deduction deduction, shall not be less than equal the amount respective amounts of principal, interest and premium, if any, which would otherwise have been receivable in the Holders would have received if absence of such Taxes had not been withheld withholding or deducteddeduction; provided, however, except that the foregoing obligation to pay no such Additional Amounts does not apply to shall be payable on account of any taxes or duties which:
(a) are payable by any Taxes that would not have been so imposed but for the existence person acting as custodian bank or collecting agent on behalf of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, member or shareholder ofsuch Holder, or possessor otherwise in any manner which does not constitute a deduction or withholding by such Guarantor from payment of power over the relevant Holderprincipal, interest or premium, if any, made by it, or
(b) are payable by reason of such Holder or beneficial owner having, or having had, some personal or business connection with such Relevant Taxing Jurisdiction and not merely by reason of the relevant Holder is an estatefact that payments in respect of the Notes or the Guarantees are, nomineeor for purposes of taxation are deemed to be, trust derived from sources in, or corporation) and are secured in, the Relevant Taxing Jurisdiction Jurisdiction, or
(other than c) are imposed or withheld by reason of the mere receipt failure of such payment Holder or beneficial owner to provide certification, information, documents or other evidence concerning the ownership nationality, residence, or holding identity of the Notes outside Holder and beneficial owner or to make any valid or timely declaration or similar claim or satisfy any other reporting requirements relating to such matters, whether required or imposed by statute, treaty, regulation or administrative practice, as a precondition to exemption from, or a reduction in the rate of the jurisdiction withholding or deduction of, such taxes, or
(d) consist of organization or incorporation of the Guarantor); or (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar taxtaxes, assessment or
(e) are imposed on or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if 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 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 that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2) with respect to any payment by the applicable Guarantor to the registered Holder of principal of (or premium, this Note if any, on) or interest on such Notes to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, 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 taxes would not have been entitled imposed on such payment had such registered Holder been the sole beneficial owner of this Note, or
(f) are deducted or withheld pursuant to (i) any European Union directive or regulation concerning the taxation of interest income, or (ii) any international treaty or understanding relating to such taxation and to which the Relevant Taxing Jurisdiction or the European Union is a party, or (iii) any provision of law implementing, or complying with, or introduced to conform with, such directive, regulation, treaty or understanding, or
(g) are payable by reason of a change in law or practice that becomes effective more than thirty (30) days after the relevant payment of principal or interest becomes due, or is duly provided for and written notice thereof is provided to the Holders, whichever occurs later, or
(h) are payable because the Note was presented to a particular paying agent for payment if the Note could have been presented to another paying agent without any such withholding or deduction, or
(i) are payable for any combination of (a) through (h) above. References to principal, interest or premium in respect of the Notes in this Seventeenth Supplemental Indenture shall be deemed to include any Additional Amounts had which may be payable as set forth in this Section 2.07. References to payment, deduction or withholding by any Guarantor shall be deemed to include payment, deduction or withholding on such beneficiaryGuarantor’s behalf by its paying agent, settlor, member or beneficial owner been the actual Holder of such Notes. Upon request, the Issuer shall provide including the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or thereinSub-Paying Agent.
Appears in 1 contract
Sources: Seventeenth Supplemental Indenture (Anheuser-Busch InBev SA/NV)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment All payments made under or with respect to its Guarantee the Securities 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”"TAXES") imposed or levied by or on behalf of the government of the jurisdiction Republic of organization or incorporation of such Guarantor the ▇▇▇▇▇▇▇▇ Islands or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor is we are organized or are otherwise resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “"RELEVANT TAXING JURISDICTION"), unless withholdings or deductions of Taxes are required by law or by the interpretation or administration thereof. If the Company or a Subsidiary Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction”)Jurisdiction from any payment made under or with respect to the Securities, the Company or such Subsidiary Guarantor shall pay such additional amounts (“Additional Amounts”"ADDITIONAL AMOUNTS") as may be necessary so that the net amount received by the Holders (including Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders would have received if such Taxes had not been withheld or deducted; providedPROVIDED, howeverHOWEVER, that the foregoing obligation to pay Additional Amounts does not apply to (a1) 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, 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 of the Notes outside of the jurisdiction of organization or incorporation Republic of the Guarantor▇▇▇▇▇▇▇▇ Islands of such Security); or (b2) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall the Company or such Subsidiary Guarantor be required to pay Additional Amounts (1) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Notes Security for payment within 30 days after the date on which such payment or such Notes Security 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 Notes Security been presented on the last day of such 30-30 day period), or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder 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 of such Notes. Upon request, the Issuer Company shall provide the Trustee with the official acknowledgement, receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. Copies of such documentation will be made available to the Holders of the Securities or the Paying Agents, as applicable, upon request therefor. Whenever in this Indenture there is mentioned, in any context: (1) the payment of principal; (2) purchase prices in connection with a purchase of Securities; (3) interest; or (4) any other amount payable on or with respect to any of the Securities, such reference shall be deemed to include payment of Additional Amounts provided for in this Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(1) the Republic of the ▇▇▇▇▇▇▇▇ Islands, (2) the jurisdiction of incorporation of any successor of the Company or (3) any jurisdiction in which a paying agent is located, and we will agree to indemnify the Holders for any such taxes paid by such Holders. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer Company is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Omi Corp/M I)
Additional Amounts. If All amounts paid or credited by the Company under or with respect to the Notes, or by any Guarantor pursuant to its Note Guarantee, will be made free and clear of and without withholding or deduction for or on account of any Taxes imposed or levied by or on behalf of a Taxing Jurisdiction, unless the Company or any Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount Taxes from any payment made under or with respect to its Guarantee the Notes or by the interpretation or administration thereof. If, after the date on which Notes are first issued and authenticated under this Indenture, the Company or any Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any present payment made under or future taxwith respect to the Notes, duty, levy, impost, assessment the Company or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or such Guarantor will pay to each Holder of Notes that are outstanding on behalf the date of the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to taxrequired payment, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”), such Guarantor shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders such Holder (including the Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders such Holder would have received if such Taxes had not been withheld or deducted; provided, however, provided that the foregoing obligation to pay no Additional Amounts will be payable with respect to a payment made to a Holder of the Notes (each of the following, an “Excluded Holder”):
(1) with whom the Company does not apply to deal at arm’s length (awithin the meaning of the Income Tax Act (Canada)) any at the time of making such payment or credit;
(2) on which such Taxes that would not have been so imposed but for because of the existence of any present or former connection between the relevant Holder or beneficial owner (or between a fiduciary, settlorsettler, beneficiary, or member or shareholder of, or possessor of power over over, the relevant HolderHolder or beneficial owner, if the relevant Holder or beneficial owner is an estate, nominee, trust trust, or corporationpartnership) and the Relevant Taxing Jurisdiction (other than the mere receipt of such payment or the ownership or holding of such note), including without limitation such Holder or beneficial owner being a resident, domiciliary or national of, or engaged in business or maintaining a permanent establishment in, the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or Taxing Jurisdiction;
(b3) any on which such estate, inheritance, gift, sales, excise, transfer, personal property tax or similar taxtax have been imposed;
(4) on which such Taxes are imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of a note with a request by the Company addressed to the Holder or such beneficial owner (i) to provide information concerning the nationality, assessment residence, identity, entitlement to treaty benefits or governmental chargepresent or former connection with a Taxing Jurisdiction of the Holder or such treaty benefits or present or former connection with a Taxing Jurisdiction of the Holder or such beneficial owner or (ii) to make any declaration or other similar claim or satisfy any certification, information or reporting requirement, which, in the case of (i) or (ii), is required or imposed by a statue, treaty, regulation or administrative practice of the Taxing Jurisdiction as a precondition to exemption from all or part of such Taxes;
(5) which failed to duly and timely comply with a timely request by the Company to provide information, documents, certification or other evidence concerning such Holder’s nationality, residence, entitlement to treaty benefits, identity or connection with a Taxing Jurisdiction or any political subdivision or authority thereof, if and to the extent that due and timely compliance with such request could have resulted in the reduction or elimination of any Taxes as to which Additional Amounts would otherwise have been payable to such Holder of Notes but for this clause (5);
(6) which is a fiduciary, a partnership or not the beneficial owner of any payment on a note, if and to the extent that any beneficiary or settlor of such fiduciary, any partner of 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 such payment if such beneficiary, settlor, partner or beneficial owner had been the Holder of such note; or
(7) any combination of the foregoing clauses (1) through (6). Neither the Company nor shall such a Guarantor will be required to pay Additional Amounts (1) if the payment could have been made without such deduction or withholding if if, when presentation is required, the beneficiary of the payment had presented the Notes Note for payment within 30 days after the date on which such payment or such Notes 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 such beneficiary would have been entitled to Additional Amounts had the Notes Note been presented on the last day of such the 30-day period). The Company and the Guarantors will also:
(1) make such withholding or deduction, or and
(2) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company and the Guarantors will furnish to the Trustee, or cause to be furnished to 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 that such payment has been made by the Company or any such Guarantor or other evidence of such payment satisfactory to the Trustee. The trustee shall make such evidence available upon the written request of any Holder of the Notes that are outstanding on the date of any such withholding or deduction. The Company and the 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:
(1) any Taxes so levied or imposed by or on behalf of a Taxing Jurisdiction and actually 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
(2) any Taxes (other than Taxes on such Holder’s profits or net income) imposed with respect to any reimbursement under clause (1) above 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 imposed. 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 such Guarantor becomes obligated to pay Additional Amounts with respect to such payment, the Company or such 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 of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context:
(1) the payment of principal of (or and premium, if any, on);
(2) purchase prices in connection with a repurchase of Notes;
(3) interest; or
(4) any other amount payable on or interest on such Notes with respect to any Holder who is a fiduciary or partnership or any person other than of the sole beneficial owner Notes, such mention shall be deemed to include mention of such payment, the payment of Additional Amounts provided for in this section to the extent that a beneficiary or settlor with respect to that, in such fiduciarycontext, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiaryare, settlor, member were or beneficial owner been the actual Holder of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with would be payable in respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or thereinthereof.
Appears in 1 contract
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or Payments made by the interpretation or administration thereof to withhold or deduct any amount from any payment made Company under or with respect to its the Notes or any of the Guarantors under or with respect to any Note Guarantee will be made without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge charge, including any related interest, penalties or additions to tax (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or (1) any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such the Company or any Guarantor is from time to time organized, engaged in business for tax purposes or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which payment under its Guarantee is made by or on behalf of the Company or any Guarantor (each including the jurisdiction of any paying agent) or any political subdivision thereof or therein (each, a “Relevant Taxing Tax Jurisdiction”)) will at any time be required to be made from any payments made by the Company under or with respect to the Notes or any of the Guarantors under or with respect to any Note Guarantee, such Guarantor shall the Company or the relevant Guarantor, as applicable, will pay to each Holder of Notes, such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders beneficial owner of the payment for purposes of the applicable Tax (the “Tax Beneficial Owner”) (including the Additional Amounts) after such withholding or deduction shall by the applicable withholding agent (including in respect of the Additional Amounts) will not be less than the amount the Holders such Tax Beneficial Owner would have received if such Taxes had not been withheld or deducted; providedprovided that no Additional Amounts will be payable with respect to a payment to a Holder:
(a) in respect of any Canadian Tax due by reason of the Company or the Guarantors, howeveras applicable, that not dealing at arm's length (within the foregoing meaning of the Income Tax Act) at the time of making such payment with such Holder or the Tax Beneficial Owner, or with another person to whom the Company or the Guarantors, as applicable, have an obligation to pay Additional Amounts does an amount under or in respect of such Notes,
(b) in respect of any Canadian Tax due by reason of such Holder or the Tax Beneficial Owner being a “specified shareholder” (as defined in subsection 18(5) of the Income Tax Act) of the Company at the time of such payment or deemed payment, or not apply to dealing at arm's length with a “specified shareholder” (aas defined in subsection 18(5) of the Income Tax Act) of the Company at the time of such payment or deemed payment,
(c) in respect of any Taxes Tax due by reason of such Holder or the Tax Beneficial Owner being or having been connected with the relevant Tax Jurisdiction (including by being or having been a citizen, resident or national of, or carrying on a business or maintaining a permanent establishment in, such Tax Jurisdiction) otherwise than by the acquisition, ownership or disposition of the Notes, the receipt of payments under or in respect of such Note or a Note Guarantee or the enforcement thereof,
(d) in respect of any Tax that would not have been so imposed but for the existence of any present withheld 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, deducted 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 of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if the payment could have Note had 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 Company made available to such Holder a payment or such Notes became due and payable or in accordance with the date on which payment thereof is duly provided forterms of the Indenture, whichever is later (except to the extent that the such Holder would have been entitled to Additional Amounts had the Notes Note been presented on the last day of such 30-30 day periodperiod and there were no additional withholdings or deductions as a result of such late presentment,
(e) in respect of any estate, inheritance, gift, sales, transfer or similar Tax,
(f) in respect of any Tax due because the Holder or the Tax Beneficial Owner, despite being required by law, statute, treaty, regulation or administrative practice of the relevant Tax Jurisdiction as a precondition to exemption from all or part of such Taxes, or reduction in the rate of withholding or deduction of such Taxes, failed to comply with a timely request of the Company to provide information concerning such Holder or the Tax Beneficial Owner's nationality, residence, entitlement to treaty benefits, identity or connection with a Tax Jurisdiction or to make any timely or valid declaration or similar claim or satisfy any certification information or other reporting requirement, if and to the extent that due and timely compliance with such request would have reduced or eliminated any Taxes as to which Additional Amounts would have otherwise been payable to such Holder but for this clause,
(g) in respect of any withholding or deduction required by current sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended or any amended or successor version that is substantively comparable and not materially more onerous to comply with (““FATCA''), any current or future U.S. Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted to implement FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA, or
(h) any combination of the above clauses in this proviso. If it is the applicable withholding agent, the Company or the relevant Guarantor will also:
(a) make such withholding or deduction, and
(b) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company or the relevant Guarantor will furnish to the Trustee, within 60 days after the date the payment of any Taxes that are due pursuant to applicable law, copies of tax receipts, if any (or other documentation), evidencing the payments of Taxes made by the Company, or a Guarantor, as the case may be on behalf of the Holders or the Tax Beneficial Owners. The Company and the Guarantors will indemnify and hold harmless each Holder of Notes and upon written request reimburse each such Holder for the amount of:
(a) any Taxes (other than any Taxes excluded from Additional Amounts in clauses (a) through (h) above) levied or imposed and paid by such Holder or the applicable Tax Beneficial Owner as a result of any failure of the Company or the relevant Guarantor to withhold, deduct or remit to the relevant authority, on a timely basis, the full amount required under applicable law,
(b) any liability (including penalties, interest and expense) arising therefrom or with respect thereto, and
(c) any Taxes (other than (i) any Taxes excluded from Additional Amounts in clauses (a) through (h) above and (ii) any Taxes that are in the nature of taxes on net income, taxes on capital, franchise taxes, net worth taxes and similar taxes that in each case, are imposed by any jurisdiction as a result of the Holder or Tax Beneficial Owner being connected with such jurisdiction otherwise than by the acquisition, ownership or disposition of the Notes, the receipt of payments under or in respect of such Note or a Note Guarantee or the enforcement thereof) imposed with respect to any reimbursement under clause (a) or (2b) above. In addition to the foregoing, the Company and the Guarantors will also pay and indemnify each Holder for any present or future stamp, issue, registration, transfer, court or 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 Note Guarantee or any other document referred to therein, or the receipt of any payments under or with respect thereto, or enforcement of, any of the Notes or any Note Guarantee. If the Company or any Guarantor becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or a Note Guarantee, the Company or such Guarantor, as the case may be, will deliver to the Trustee on a date which is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Company or such Guarantor shall notify the Trustee promptly thereafter) an Officer's 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 reasonably necessary to enable the Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context:
(a) the payment of principal of (or and premium, if any),
(b) purchase prices in connection with a repurchase of Notes,
(c) interest, onor
(d) any other amount payable under or interest on such Notes with respect to any Holder who is a fiduciary or partnership of the Notes or any person other than Note Guarantee, such mention shall be deemed to include mention of the sole beneficial owner payment of such payment, Additional Amounts provided for in this Section 4.19 to the extent that a beneficiary or settlor with respect to that, in such fiduciarycontext, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiaryare, settlor, member were or beneficial owner been the actual Holder of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with would be payable in respect to which Additional Amounts are paidthereof. The above obligations described under this Section shall will survive any termination, defeasance or discharge of this Indenture and shall apply any transfer by a Holder or Tax Beneficial Owner of its Notes, and will apply, mutatis mutandis mutandis, to any jurisdiction in which any successor Person to the Issuer Company or any Guarantor is organized organized, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes (or any Note Guarantee) and, in each case, any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Tembec Industries Inc)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary (a) All payments made by or is a Puerto Rican corporation is required by applicable law or by on behalf of the interpretation or administration thereof to withhold or deduct any amount from any payment made Company under or with respect to its Guarantee the Notes, or by or on behalf of any Guarantor that is resident for tax purposes or organized other than in the United States under or with respect to any Note 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 government of the jurisdiction Canada, any province or territory of organization or incorporation of such Guarantor Canada or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which the Company or any such Guarantor is organized, or is otherwise carrying on business in, or is otherwise resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each each, a “Relevant Taxing Jurisdiction”), unless such Person is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(b) If the Company or any Guarantor that is organized, or is otherwise carrying on business in, or is otherwise resident for tax purposes other than in the United States (each such person, a “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 a Note Guarantee, such Payor shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders a Holder or beneficial owner of Notes (including Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders such Holder or 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 the foregoing obligation obligations to pay Additional Amounts does shall not apply to (a1) any Holder or beneficial owner of Notes with which the applicable Payor does not deal at arm’s length (within the meaning of the Tax Act) at the time of the payment; (2) any Taxes to the extent such Taxes are assessed or imposed by reason of the Holder or beneficial owner of the Note being a “specified shareholder” as defined in subsection 18(5) of the Tax Act of the Payor of such payment or not dealing at arm’s length (for purposes of the Tax Act) with a “specified shareholder” of the Payor of such payment; (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 thereof; 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 between 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 fiduciarycitizen, settlor, beneficiary, member resident or shareholder ofnational thereof, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust being or corporation) and having been present or 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 receipt of such payment or the acquisition, ownership or holding of such Note or a beneficial interest therein or the Notes outside enforcement of rights thereunder or the jurisdiction receipt of organization or incorporation of the Guarantorany payment in respect thereof); or (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts be paid (1a) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Notes Note for payment within 30 days after the date on which such payment or such Notes 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 or beneficial owner would have been entitled to Additional Amounts had the Notes Note been presented on the last day of such 30-day period), or ; (2b) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, to the extent that relating to Taxes imposed by reason of the Holder’s or beneficial owner’s failure to comply with any certification, documentation, information or other evidentiary requirement concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction if compliance is required by law, regulation, administrative practice or an applicable treaty as a beneficiary precondition to exemption from, or settlor with respect a reduction in the rate of deduction or withholding of, such Taxes to which 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 Holder or beneficial owner is entitled; (c) to the extent relating to any tax assessment or other governmental charge which would have been avoided by such Holder by presenting the actual Holder relevant Note (if presentation is required); or (d) to the extent relating to any combination of any of the above clauses (any such NotesTax in respect of which Additional Amounts are payable, an “Indemnified Tax”).
(c) The applicable Payor shall make any required withholding or deduction and remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. Upon request, the Issuer Company shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations .
(d) If a Payor is or will become obligated to pay Additional Amounts under or with respect to any payment made on the Notes or a Note Guarantee, at least 30 days prior to the date of such payment (unless 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), such Payor shall deliver to the Trustee and the Paying Agent (if different) 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.
(e) 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 reference shall be deemed to include payment of Additional Amounts as described under this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The Company and the Guarantors shall indemnify and hold harmless a Holder of the 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 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, enforcement or registration of the Notes, the Note Guarantees, this Indenture or any other document or instrument in relation thereof, or the receipt of any payments with respect to the Notes or any Note Guarantees and the Company and the Guarantors shall indemnify the Holders of Notes for any such amounts (including penalties, interest and other liabilities related thereto) paid by such Holders.
(h) The obligations described in this Section 2.13 will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or thereinIndenture.
Appears in 1 contract
Sources: Indenture (New Gold Inc. /FI)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is (a) All payments required by applicable law or to be made by the interpretation or administration thereof to withhold or deduct any amount from any payment made Issuer under or with respect to its the Notes or by any Guarantor under or with respect to a Note Guarantee (the Issuer or such Guarantor and, in each case, any successor thereof, making such payment, the “Payor”), will 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 (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) taxes imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or tax within any other jurisdiction in which such Guarantor any Payor is incorporated, organized or otherwise resident for tax purposes purposes, or engaged in business for tax purposes, or any jurisdiction from or through which payment under its Guarantee is made by or on behalf of such Payor (each a “Relevant Taxing Jurisdiction”), unless such Guarantor shall Payor is required to withhold or deduct such taxes by law or regulation.
(b) If a Payor is so required to withhold or deduct any amount for or on account of taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or a Note Guarantee, as applicable, such Payor will be required to pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders any Holder (including Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders Holder or beneficial owner would have received if such Taxes taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to to:
(a1) any Taxes taxes that would not have been (or would not be required to be) so imposed imposed, withheld, deducted or levied but for the existence of any present or former connection between the relevant Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over over, the relevant HolderHolder or beneficial owner, if the relevant Holder or beneficial owner is an estate, nominee, trust trust, partnership, company or corporation) and the Relevant Taxing Jurisdiction Jurisdiction, including, without limitation, such Holder or beneficial owner being or having been a citizen, domiciliary, national or resident thereof, or being or having been present or engaged in a trade or business therein or having or having had a permanent establishment therein (other than any connection arising solely from the mere receipt of such payment or the ownership acquisition or holding of any Note, the Notes outside receipt of any payments in respect of such Note or Note Guarantee or the jurisdiction exercise or enforcement of organization or incorporation of the Guarantorrights under a Note Guarantee); or ;
(b2) any estate, inheritance, gift, sales, excise, sales transfer, personal property or similar tax or similar tax, assessment assessment;
(3) any taxes which are payable other than by withholding or governmental charge; nor shall such Guarantor deduction from payments made under or with respect to the Notes or any Note Guarantee;
(4) any taxes that would not have been (or would not be required to pay Additional Amounts be) imposed, withheld, deducted or levied if such Holder or the beneficial owner of any Note or interest therein (1i) if complied with all reasonable written requests by the Payor (made at a time that would enable the Holder or beneficial owner acting reasonably to comply with such request) to provide timely and accurate information or documentation concerning the nationality, residence or identity of such Holder or beneficial owner or (ii) made any declaration or similar claim or satisfy any certification, information or reporting requirement, which in the case of (i) or (ii), is required or imposed by a statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of withholding or deduction of, all or part of such taxes;
(5) any taxes imposed or withheld on or with respect to a payment which could have been made without such deduction or withholding if the beneficiary of the payment had presented the Notes Note for payment (where presentation is required) within 30 days after the date on which such payment or such Notes 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 or beneficial owner would have been entitled to Additional Amounts had the Notes Note been presented on any day during the last day of such 30-day period), ;
(6) any taxes imposed on or (2) with respect to any payment of principal of (made under or premium, if any, on) with respect to such Note or interest on such Notes Note Guarantee to any Holder who is a fiduciary or partnership or any person 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 sole beneficial owner of such Note;
(7) any taxes payable under Sections 1471-1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), as of the issue date of the Notes (or any amended or successor version), any regulations or official interpretations thereof, any intergovernmental agreement entered into in connection therewith, or any 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;
(8) any taxes, duties, assessments or other governmental charges imposed on a payment in respect of the Notes or Note Guarantee required to be made pursuant to laws enacted by Switzerland providing for the taxation of payments according to principles similar to those laid down in the draft legislation of the Swiss Federal Council of December 17, 2014, or otherwise changing the Swiss federal withholding tax system from an issuer-based system to a paying agent based system pursuant to which a person other than the issuer is required to withhold tax on any interest payments; or
(9) any taxes imposed or levied by reason of any combination of clauses (1) through (7) of this Section 2.14(b).
(c) The Issuer and the Guarantors (as the case may be) will pay any present or future stamp, issue, registration, excise, property, court or documentary taxes, or similar taxes, charges or levies (referred to in this Section 2.14(c) as “stamp taxes”) for which the Issuer, any guarantor or a holder of Notes is accountable and interest, penalties and other reasonable expenses related thereto that arise in or are levied by any Relevant Taxing Jurisdiction on the execution, issuance, delivery, enforcement or registration of, or in connection with the payment under, the Notes, this Indenture, the Note Guarantees or any other document or instrument in relation thereto (other than on a transfer or assignment of the Notes) except for stamp taxes due as a result of registration or other action by the Holder where such registration or action is not necessary to maintain, preserve, establish, enforce, perfect or protect the rights of the Holder.
(d) The Payor will make or cause to be made any withholding or deduction required in respect of taxes, and remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction, in accordance with applicable law. Upon requestrequest from Holders, the Issuer shall provide Payor will use reasonable efforts to provide, within a reasonable time after the date the payment of any such taxes so deducted or withheld is made, the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes taxes so deducted or withheld.
(e) If any Payor will be obligated to pay Additional Amounts under or with respect to which any payment made on the Notes, the Payor will deliver to the paying agent with a copy to the Trustee on a date that is at least 10 days prior to the date of that payment (unless the obligation to pay Additional Amounts are paidarises after the 10th day prior to that payment date, in which case the Payor shall notify the paying agent and the Trustee promptly thereafter) a certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable and such other information reasonably necessary to enable the paying agent to pay Additional Amounts to Holders on the relevant payment date. The Payor shall also deliver a form of Additional Amounts notice that can be delivered to the registered Holders.
(f) Whenever in this Indenture there is mentioned, in any context:
(1) the payment of principal;
(2) the payment of interest; or
(3) any other amount payable on or with respect to any of the Notes, such reference will be deemed to include payment of Additional Amounts as described in this Section 2.14 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(g) The obligations described under in this Section shall 2.14 will survive any termination, defeasance or discharge of this Indenture or any Note Guarantee and shall will apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer Payor is incorporated, organized or otherwise resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Tronox LTD)
Additional Amounts. If a Guarantor (a) All payments that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made Issuer makes under or with respect to its Guarantee the 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 (hereinafter collectively, “Taxes”) imposed or levied on such payments by or on behalf of any jurisdiction (other than the government United States, any state thereof or the District of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction Columbia) in which such Guarantor the Issuer is organized, resident or doing business for tax purposes or any jurisdiction from or through which it (or its agents, including the Paying Agent) makes any payment under its Guarantee is made on this Note or by or within any department, political subdivision or governmental authority of or in any of the foregoing having power to tax (each each, a “Relevant Taxing Jurisdiction”), such Guarantor unless the Issuer 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 of law. If the Issuer or other applicable withholding agent is 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 this Note, the Issuer shall pay such additional amounts (“Additional Amounts”) as may be necessary so to ensure that the net amount received by each beneficial owner of the Holders (including Additional Amounts) Notes after such withholding or deduction shall (including any withholding or deduction in respect of any Additional Amounts) will not be less than the amount the Holders beneficial owner would have received if such Taxes had not been withheld or deducted; provided.
(b) The Issuer will not, however, that the foregoing obligation to pay Additional Amounts does not apply to in respect or on account of:
(ai) any Taxes, to the extent such Taxes that would not have been so are imposed but for or levied by a Relevant Taxing Jurisdiction by reason of the existence of any Person’s in whose name a Note is registered on the Registrar’s books (each such Person, a “ Holder”) or beneficial owner’s 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 with such Relevant Taxing Jurisdiction (other than the mere receipt, ownership, holding or disposition of this Note, or by reason of the receipt of such payment any payments in respect of any Notes, or the ownership exercise or holding enforcement of rights under any Notes);
(ii) any Taxes to the extent such Taxes are imposed or withheld by reason of the Notes outside failure of the jurisdiction Holder or beneficial owner of organization this Note, following the Issuer’s written request addressed to the Holder or incorporation beneficial owner, to comply with any certification, identification, information or other reporting requirements (to the extent such holder or beneficial owner is legally eligible to 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 Guarantor); or (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if the payment could have been made without such rate of deduction or withholding if of, such Taxes imposed by the beneficiary of the payment had presented the Notes for payment within 30 days after the date on which such payment or such Notes became due and payable or the date on which payment thereof is duly provided forRelevant Taxing Jurisdiction (including, whichever is later (except to the extent without limitation, a certification that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder 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 is not resident in the actual Holder of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.Relevant Taxing Jurisdiction);
Appears in 1 contract
Sources: Indenture (Ardagh Group S.A.)
Additional Amounts. If All payments made under or with respect to the Notes or that the Guarantors make under or with respect to the Guarantees shall be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any jurisdiction in which the Issuer or Guarantor is organized, engaged in business, resident for tax purposes or generally subject to tax on a Guarantor that net income basis or from or through which payment on the Notes is made or any political subdivision or authority thereof or therein having the power to tax (each, a Foreign Subsidiary “Relevant Taxing Jurisdiction”) and any interest, penalties and other liabilities with respect thereto (collectively, “Taxes”), unless the withholding or is a Puerto Rican corporation deduction of such Taxes is required by applicable law or by the relevant taxing authority’s interpretation or administration thereof thereof. In the event that the Issuer or Guarantor is 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 its Guarantee for the Notes, the Issuer or on account of any present or future taxGuarantor, dutyas the case may be, 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 government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”), such Guarantor shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each Holder or beneficial owner of the Holders Notes (including Additional Amounts) after such withholding or deduction shall be not be less than the amount the Holders that such Holder or beneficial owner would have received if such Taxes had not been required to be withheld or deducted; provided. Notwithstanding the foregoing, however, that neither the foregoing obligation to Issuer nor the Guarantor shall pay Additional Amounts does not apply to a Holder or beneficial owner of any Note in respect or on account of:
(a) any Taxes that would not have been so are imposed but for or levied by a Relevant Taxing Jurisdiction by reason of the existence of any Holder’s or beneficial owner’s present or former connection between with such Relevant Taxing Jurisdiction (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 this Note or the 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 the Notes is due and payable (the “Relevant Payment Date”) to comply with the Issuer’s written request addressed to the Holder (or between beneficial owner at least 30 calendar days prior to the Relevant Payment Date to provide accurate information with respect to any 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 satisfy, whether imposed by statute, treaty, regulation or administrative practice, in each such case by the Relevant Taxing Jurisdiction, as a fiduciaryprecondition to exemption from, settlor, beneficiary, member or shareholder reduction in the rate of deduction or withholding of, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust or corporation) and Taxes imposed by the Relevant Taxing Jurisdiction (other than including, without limitation, a certification that the mere receipt of such payment Holder or beneficial owner is not resident in the ownership or holding of the Notes outside of the jurisdiction of organization or incorporation of the GuarantorRelevant Taxing Jurisdiction); or ;
(bc) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts Taxes;
(1d) if the payment could have been made without such any Tax that is payable other than by deduction or withholding if 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 beneficiary presentation (where presentation is required in order to receive payment) by the Holder or beneficial owner of the payment had presented the Notes a Note for payment within on a date more than 30 days after the date on which such payment or such Notes became becomes due and payable or the date on which payment thereof is duly provided for, whichever is later (occurs later, except to the extent that the Holder or beneficial owner would have been entitled to such Additional Amounts had on presenting the Notes been presented same for payment on any day (including the last day of 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;
(2g) 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 a Member State of the European Union or;
(h) any Tax that is imposed on or with respect to any payment of principal of (or premium, if any, on) or interest on such Notes made to any Holder who is a fiduciary or partnership or any person other than 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 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 of such NotesNote. Upon requestIn addition, the Issuer Additional Amounts shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes not be payable with respect to which Additional Amounts any Taxes that are paidimposed in respect of any combination of the above items. The obligations described under this Section Issuer or Guarantor shall survive any termination, defeasance also make or discharge cause to be made such withholding or deduction of this Indenture Taxes and shall apply mutatis mutandis to any jurisdiction in which any successor Person remit the full amount of Taxes so deducted or withheld to the Issuer is organized or any political subdivision or relevant taxing authority or agency thereof or therein.in accordance with all applicable laws. The Issuer shall, upon request, make
Appears in 1 contract
Sources: Indenture (InterXion Holding N.V.)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment All payments made under or with respect to its Guarantee the Securities 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”"TAXES") imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor U.K. or any political subdivision thereof or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor the Company is organized or is otherwise resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “"RELEVANT TAXING JURISDICTION"), unless the Company is required to withhold or deduct Taxes by law. If the Company is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction”)Jurisdiction from any payment made under or with respect to the Securities, such Guarantor the Company shall pay such additional amounts (“Additional Amounts”"ADDITIONAL AMOUNTS") as may be necessary so that the net amount received by the Holders (including Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders would have received if such Taxes had not been withheld or deducted; providedPROVIDED, howeverHOWEVER, that the foregoing obligation to pay Additional Amounts does not apply to (a1) 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, 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 holding of such payment or the ownership or holding of the Notes outside of the jurisdiction of organization or incorporation of the GuarantorSecurity); or (b2) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor (3) any Taxes that are imposed or withheld by reason of the failure of the Holder or beneficial owner of the Security to comply with any request by the Company to provide information or documentation concerning the nationality, residence or identity of such Holder or beneficial owner or to make any declaration or similar claim or satisfy any information or reporting requirement, which is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part; (4) a withholding or deduction imposed on a payment to an individual which is required to be made pursuant to any European Union Directive on the taxation of savings implementing the conclusions of the ECOFIN Council meeting on November 26-27, 2000, or any law implementing or complying with, or introduced in order to 50 conform to, such Directive; (5) a Security presented for payment by or on behalf of a Securityholder who would have been able to avoid such withholding or deduction by presenting the relevant Security to another paying agent in a Member State of the European Union; or (6) any Taxes imposed by reason of any combination of clauses (1), (2), (3), (4) or (5) above. In addition, the Company shall such Guarantor not be required to pay Additional Amounts (1a) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Notes Security for payment within 30 days after the date on which such payment or such Notes Security 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 Notes Security been presented on the last day of such 30-30 day period), or (2b) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes Security to any Holder 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 of such NotesSecurity. Upon request, the Issuer Company shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. Whenever in this Indenture there is mentioned, in any context: (1) the payment of principal; (2) purchase prices in connection with a purchase of Securities; (3) interest; or (4) any other amount payable on or with respect to any of the Securities, such reference shall be deemed to include payment of Additional Amounts provided for in this Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company shall pay any present or future stamp or similar court or documentary taxes, charges or levies ("stamp taxes") that arise in any jurisdiction from the execution, delivery, enforcement or registration of the Securities, this Indenture or any other document or instrument in relation thereof, excluding such taxes, charges or similar levies imposed by any jurisdiction outside of the U.K., the jurisdiction of incorporation of any successor of the Company or any jurisdiction in which a paying agent is located, and the Company shall agree to indemnify the Holders for any such stamp taxes paid by such Holders. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer Company is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Enodis PLC)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made under or with respect to its Guarantee 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 All payments by or on behalf of the government Company (including any payment made pursuant to a Subsidiary Guarantee) of principal and interest in respect of the jurisdiction Notes shall be made free and clear of, and without withholding or deduction for or on account, of organization any present or incorporation future taxes, duties, assessments or governmental charges of such Guarantor whatever nature imposed, levied, collected, withheld or assessed (“Taxes”) by or within Argentina or by or within any political subdivision thereof or any authority or agency therein or thereof having power to tax, tax or within by any other jurisdiction in which such the Company or a Subsidiary Guarantor is organized or resident for tax purposes or any jurisdiction from or through which payments by or on behalf of the Company (including any payment under its Guarantee is made pursuant to a Subsidiary Guarantee) are made on the Notes (each each, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required or compelled by law. In the event of any such withholding or deduction, the Company (in the case of payments made by the Company) or a Subsidiary Guarantor (in the case of payments made by a Subsidiary Guarantor) shall pay to Holders of the Notes in U.S. dollars such additional amounts (“Additional Amounts”) as may be necessary so will result in the payment to such Holder of the amount that would otherwise have been receivable by such Holder in the net amount received by the Holders (including Additional Amounts) after absence of such withholding or deduction shall not be less than (in each case based on the amount Peso Equivalent Principal Amount of the Holders would have received if Notes Outstanding and converted from Pesos to U.S. dollars at the Applicable Exchange Rate on the relevant Calculation Date), except that no such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to shall be payable:
(a) in respect of any Taxes that would not have been so imposed withheld or deducted but for the existence of any present or former connection connection, including a permanent establishment, between the relevant Holder or beneficial owner of the Note or any payment in respect of such Note (or, if the Holder or beneficial owner is an estate, nominee, trust, partnership or corporation, between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over over, the relevant Holder, if the relevant Holder is an estate, nominee, trust or corporationbeneficial owner) and the applicable Relevant Taxing Jurisdiction (Jurisdiction, other than the mere receipt of such payment or the mere acquisition, holding or ownership of such Note or holding beneficial interest or the enforcement of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or rights thereunder;
(b) in respect of any estate, inheritance, gift, sales, excise, transfer, personal property tax Taxes that would not have been so withheld or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) deducted if the payment could have Note had been made without such deduction or withholding if the beneficiary of the payment had presented the Notes for payment (where presentation is required) within 30 days after the date on which such payment or such Notes became due and payable or the date on which payment thereof is duly provided for, whichever is later Relevant Date (as defined below) except to the extent that the Holder or beneficial owner thereof would have been entitled to such Additional Amounts if it had the Notes been presented on such Note for payment the last day of such 30-day period);
(c) in respect of any Taxes that would not have been so withheld or deducted but for the failure by the Holder, or, the beneficial owner of the Note to (i) make a declaration of non-residence, or any other claim or filing for exemption, to which it is entitled or (2ii) comply with respect any certification, identification, information, documentation or other reporting requirement concerning its nationality, residence, identity or any reasonable connection with the applicable Relevant Taxing Jurisdiction, including without limitation, pursuant to any applicable law, statute, treaty or regulation of the applicant Relevant Taxing Jurisdiction or written administrative instruction of the AFIP; provided that, in no event, shall such Holder’s or beneficial owner’s requirement to make a valid and legal claim for exemption from or reduction of such tax require such Holder or beneficial owner to provide any materially more onerous information, documents or other evidence than would be required to be provided had such Holder or beneficial owner been required to file a U.S. IRS Form W-8 or W-9;
(d) in respect of any estate, inheritance, gift, value added, sales, use, excise, transfer, personal property or similar taxes, duties, assessments or other governmental charges;
(e) in respect of any Taxes payable other than by withholding or deduction;
(f) in respect of any payment to a Holder of principal of a Note that is a trustee or other fiduciary, a partnership (or premium, if any, onincluding an entity treated as a partnership for tax purposes) or interest on such Notes to any Holder who is a fiduciary or partnership limited liability company or any person other Person other than the sole beneficial owner of such paymentpayment or Note, to the extent that a beneficiary or settlor with respect to such trustee or fiduciary, a partner or member of such a partnership or limited liability company or the beneficial owner of such payment or Note would not have been entitled to the Additional Amounts had such beneficiary, settlor, partner member or beneficial owner been the actual Holder of such Notes. Upon request, Note;
(g) in respect of any Taxes imposed in connection with a Note presented for payment by or on behalf of a Holder thereof who would have been able to avoid such tax by presenting the Issuer shall provide the Trustee with official receipts or other documentation satisfactory relevant Note to the Trustee evidencing the payment a Paying Agent in a member state of the Taxes with European Union if the Holder of the Note is a resident of the European Union for tax purposes; or
(i) in respect of any combination of (a) through (g) above. Notwithstanding any other provision herein, any amounts to which be paid on the Notes by or on behalf of the Company, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (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, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other Person will be required to pay any Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge in respect of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or thereinFATCA Withholding.
Appears in 1 contract
Additional Amounts. (i) All payments made by or on behalf of the Borrower or any Guarantor under or with respect to the Loans or any Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future Taxes unless required by law. If a the Borrower or an Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation any other applicable withholding agent is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount for or on account of Taxes imposed by (i) any jurisdiction from or through which such payment is mad or any political subdivision or taxing authority thereof or therein or (ii) any other jurisdiction in which the Borrower or any Guarantor is incorporated, organized or otherwise resident or doing business for tax purposes or any political subdivision or taxing authority thereof or therein (each of (i) and (ii), a “Relevant Taxing Jurisdiction”) from any payment made under or with respect to its Guarantee for the Loans or on account of under any present Guarantee, the Borrower or future taxsuch Guarantor, dutyas the case may be, levy, impost, assessment or other governmental charge will pay (including penalties, interest and other liabilities related theretotogether with such payments) (hereinafter “Taxes”) imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”), such Guarantor shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders (including Additional Amounts) each beneficial owner of Loans after such withholding or deduction shall (including any withholding or deduction attributable to the Additional Amounts) will be not be less than the amount the Holders beneficial owner would have received if such Taxes had not been withheld or deducted; provided.
(ii) Neither the Borrower nor any Guarantor will, however, that the foregoing obligation to pay Additional Amounts does not apply to a Lender or beneficial owner of Loans in respect or on account of:
(aA) any Taxes that Tax, to the extent such Tax would not have been so imposed or levied by a Relevant Taxing Jurisdiction, but for the existence of any present or former connection between the relevant Holder Lender or beneficial owner (or between a fiduciary, settlor, beneficiary, member member, partner or shareholder of, or possessor of power over the relevant HolderLender or beneficial owner, if the relevant Holder Lender or beneficial owner is an estate, nominee, trust trust, partnership, limited liability company or corporation) and such Relevant Taxing Jurisdiction (including, without limitation, as a result of being a citizen or national of, or being resident or doing business for tax purposes, or maintaining a permanent establishment in, the Relevant Taxing Jurisdiction) (other than any connection arising solely from the acquisition, ownership, holding or disposition of the Notes, the receipt of payments under or with respect to such Notes or a Guarantee, or the exercise or enforcement of rights under or with respect to the Notes or any Guarantee);
(B) any Tax, to the extent such Tax is imposed or withheld by reason of the failure of the Lender or beneficial owner of Loans, following the Borrower’s written request addressed to the Lender or beneficial owner (and made at a time that would enable the Lender or beneficial owner acting reasonably to comply with that request, and in all events at least 30 days before the relevant date on which such withholding or deduction would be payable), to comply with any certification or identification requirements concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction (other than the mere receipt of such payment Lender or beneficial owner, whether required or imposed by statute, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the ownership rate of deduction or holding of withholding of, Taxes imposed by the Notes outside of Relevant Taxing Jurisdiction but in each case only to the jurisdiction of organization extent such Lender or incorporation of beneficial owner, as the Guarantor); or case may be, is legally eligible to provide such certification;
(bC) any estate, inheritance, gift, sales, excise, transfer, personal property tax transfer or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts Tax;
(1D) if the payment could have been made without such any Tax that is payable otherwise than by deduction or withholding if from payments made under or with respect to the beneficiary Loans or any Guarantee;
(E) any Tax that is imposed or levied by reason of the payment had presented presentation (where presentation is required in order to receive payment) of the Notes Loans for payment within on a date more than 30 days after the date on which such payment or such Notes became due and payable or a the date on which payment thereof is was duly provided for, whichever is later (later, except to the extent that the Holder Lender or beneficial owner would have been entitled to Additional Amounts had the Notes Note been presented for payment on the last day of any date during such 30-day period), ;
(F) [reserved];
(G) any Tax that is imposed or levied with respect to a Loan presented for payment on behalf of a Lender 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;
(2H) any Tax imposed on or with respect to any payment of principal of (by the Borrower or premium, a Guarantor to the Lender if any, on) or interest on such Notes to any Holder who Lender is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, 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 Loans, provided that there is no material cost or material commercial or legal restriction to transferring the Loans to the beneficiary, partner or other beneficial owner and only to the extent such Tax is imposed more than 90 days after the Borrower notifies such Lender of the imposition of such Tax and requests the Lender to make such a beneficiary transfer;
(I) any Taxes imposed pursuant to Sections 1471 to 1474 (inclusive) of the United States Internal Revenue Code of 1986, as of the Closing Date (or settlor any successor version that is substantively comparable and not materially more onerous to comply with), including any current or future Treasury regulations or other official interpretations or guidance thereunder and any intergovernmental agreement (and related legislation, rules or practices) implementing the foregoing;
(J) any Taxes imposed pursuant to the Dutch Withholding Tax Act 2021 (Wet Bronbelasting 2021) together with the related ordinances, regulations, guidelines, published interpretation, application or any published practice or concession of any relevant tax authority, as in effect on the date of this Agreement or, if later, on the date on which the relevant Recipient acquires an interest in the Loan or Commitment or this Agreement; or
(K) any combination of clause (A) through (J) above.
(iii) The Borrower and each Guarantor, if they are applicable withholding agents, will (A) make any such withholding or deduction required by applicable law, and (B) remit the full amount deducted or withheld to the relevant taxing authority in accordance with applicable law.
(iv) At least 30 calendar days prior to each date on which any payment under or with respect to the Loans is due and payable, if the Borrower or any Guarantor will be obligated to pay Additional Amounts with respect to such fiduciarypayment (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 Loans is due and payable, a member in which case such notice will be provided promptly after such obligation arises but prior to such payment date), the Borrower will deliver to the Administrative Agent an Officer’s Certificate stating that such Additional Amounts will be payable and the amount so payable and will set forth such other information (other than the identities of Lenders and beneficial owners) necessary to enable the Administrative Agent or paying agent as the case may be, to pay such Additional Amounts to Lenders on the relevant payment date. The Borrower will provide the Administrative Agent with documentation evidencing payment of such a partnership or Additional Amounts. The Administrative Agent shall have no further obligation with respect to the beneficial owner payment of the Additional Amounts other than to deliver the evidence of such payment would not have been entitled to the Additional Amounts had such beneficiarya Lender upon written request.
(v) The Borrower or any Guarantor, settloras applicable, member or beneficial owner been the actual Holder will use all reasonable efforts to obtain certified copies of such Notes. Upon request, the Issuer shall provide the Trustee with official tax receipts or other documentation satisfactory to the Trustee evidencing the payment of Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Taxes Administrative Agent. If certified copies of such tax receipts are not reasonably obtainable, the Borrower or such Guarantor, as applicable, shall provide the Administrative Agent other evidence of payment to the Administrative Agent. Such certified copies or other evidence shall be made available to Lenders upon written request. The Administrative Agent shall have no obligation to inquire as to the efforts of the Borrower or any Guarantor to obtain certified copies of such tax receipts and shall have no further obligation with respect thereto other than to provide the tax receipts or other evidence to the Lenders as provided herein.
(vi) In addition, the Borrower will pay any present or future stamp, issue, registration, court, documentary excise or property Taxes, or other similar Taxes, imposed by any Relevant Taxing Jurisdiction in respect of the receipt of any payment under or with respect to which Additional Amounts the Loans or any Guarantee, the execution, issue, delivery, or registration of the Loans, any Guarantee, this Agreement, or any other document or instrument referred to therein, and any such Taxes imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Loans, any Guarantee, this Agreement or any other document or instrument following the occurrence of any Event of Default with respect to the Notes. Neither the Borrower nor any Guarantor will, however, pay such amounts that are paid. imposed on or result from a sale or other transfer or disposition by a holder or beneficial owner of a Loan.
(vii) The obligations described under this Section shall preceding provisions will survive any termination, defeasance or discharge of this Indenture Agreement and shall will apply mutatis mutandis to any successor to the Borrower or any Guarantor and to any jurisdiction in which any such successor Person to the Issuer is incorporated, organized or otherwise resident or doing business for tax purposes, or any jurisdiction from or through which such any successor makes payment on the Loans or any Guarantee, and any political subdivision or taxing authority or agency thereof or therein.
(viii) Whenever this Agreement refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to the Loans (including payments thereof made pursuant to any Guarantee), such reference includes 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
Sources: Credit Agreement (Clear Channel Outdoor Holdings, Inc.)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary (a) All payments of principal and interest in respect of the Notes will be made free and clear of, and without deduction or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made under or with respect to its Guarantee withholding for or on account of of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) charges imposed or levied by or on behalf of a governmental authority in a jurisdiction (a “Relevant Tax Jurisdiction”) in which the government of the jurisdiction of organization or incorporation of such Guarantor Issuer or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor is organized or resident for tax purposes purposes, or any jurisdiction from or through which payment under its Guarantee is made (each a collectively, “Relevant Taxing JurisdictionTaxes”), unless such Guarantor shall withholding or deduction is required by law.
(b) In the event of any such withholding or deduction for Taxes, subject to the limitations described below, the Issuer (or the Guarantors) will pay such additional amounts (“Additional Amounts”) as may be necessary so to ensure that the net amount received by the Holders (including Additional Amounts) Beneficial Owner of a Note, after withholding or deduction for such Taxes, will be equal to the amount such person would have received in the absence of such withholding or deduction shall not be less than the amount the Holders would have received if such Taxes had not been withheld or deducted; provideddeduction. However, however, that the foregoing obligation to pay no Additional Amounts does not apply to shall be payable for or on account of:
(ai) any Taxes that which would not have been so imposed imposed, withheld or deducted but for for:
(A) the existence of any present or former connection between the relevant Holder or Beneficial Owner (or between a fiduciary, settlor, beneficiary, member or shareholder or other equity owner of, or possessor of a person having a power over the relevant Holderover, such Holder or Beneficial Owner, if the relevant such Holder or Beneficial Owner is an estate, nomineea trust, trust a limited liability company, a partnership, a corporation or corporationother entity) and a Relevant Tax Jurisdiction, including, without limitation, such Holder or Beneficial Owner (or such fiduciary, settlor, beneficiary, member, shareholder or other equity owner or person having such a power) being or having been a citizen or resident or treated as a resident of the Relevant Taxing Tax Jurisdiction, being or having been engaged in a trade or business in the Relevant Tax Jurisdiction, being or having been present in the Relevant Tax Jurisdiction, or having or having had a permanent establishment in the Relevant Tax Jurisdiction;
(B) the failure of the Holder or any other person to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the Relevant Tax Jurisdiction of the Holder or Beneficial Owner of the Notes, if compliance is required by statute, by regulation of the Relevant Tax Jurisdiction or any taxing authority therein or by an applicable income tax treaty to which the Relevant Tax Jurisdiction is a party as a precondition to partial or complete exemption from such tax, assessment or other governmental charge (other than including, but not limited to, the mere receipt requirement to provide Internal Revenue Service Form W-8BEN, Form W-8BEN-E, Form W-8ECI, Form W-8IMY (and related documentation) or any subsequent versions thereof or successor thereto); or
(C) the Holder’s or Beneficial Owner’s present or former status as a personal holding company with respect to the United States, as a controlled foreign corporation with respect to the United States, as a passive foreign investment company with respect to the United States, as a foreign tax exempt organization with respect to the United States or as a corporation that accumulates earnings to avoid United States federal income tax;
(ii) any Taxes which would not have been imposed, withheld or deducted but for the failure of the Holder or Beneficial Owner to meet the requirements (including the certification requirements) of Section 871(h) or Section 881(c) of the Code;
(iii) any Taxes which would not have been imposed, withheld or deducted but for the presentation by the Holder or Beneficial Owner of such Note for payment on a date more than 30 days after the date on which such payment became due and payable or the ownership or holding date on which payment of the Notes outside of Note is duly provided for and notice is given to Holders, whichever occurs later, except to the jurisdiction of organization extent that the Holder or incorporation of the Guarantor); or Beneficial Owner would have been entitled to such Additional Amounts on presenting such Note on any date during such 30-day period;
(biv) any estate, inheritance, gift, sales, excise, transfer, personal property tax property, wealth or similar taxTaxes;
(v) any Taxes which are payable otherwise than by withholding or deduction from a payment in respect of such Note;
(vi) any Taxes which are imposed, assessment withheld or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if deducted with respect to, or payable by, a Holder that is not the payment could have been made without such deduction or withholding if the beneficiary Beneficial Owner of the payment had presented Note, or a portion of the Notes for payment within 30 days after the date on which such payment Note, or such Notes became due and payable that is a fiduciary, partnership, limited liability company or the date on which payment thereof is duly provided forother similar entity, whichever is later (except but, in each case, only to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period)a Beneficial Owner, or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder 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 fiduciary or member of such a partnership partnership, limited liability company or the beneficial owner of such payment similar entity would not have been entitled to the payment of an Additional Amounts Amount had such beneficiaryBeneficial Owner, settlor, beneficiary or member received directly its beneficial or distributive share of the payment;
(vii) any Taxes required to be withheld or deducted by any Paying Agent from any payment on any Note, if such payment can be made without such withholding or deduction by at least one other Paying Agent;
(viii) any Taxes imposed, withheld or deducted under Sections 1471 through 1474 of the Code (or any amended or successor provisions), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code;
(ix) any Taxes that would not have been imposed, withheld, deducted or levied but for a change in any law, treaty, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the applicable payment becomes due or is duly provided for, whichever occurs later; or
(x) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii), (viii) and (ix).
(c) For purposes of this Section 4.15, the acquisition, ownership, enforcement, or holding of or the receipt of any payment with respect to the Notes will not constitute a connection (1) between the Holder or Beneficial Owner and the Relevant Tax Jurisdiction or (2) between a fiduciary, settlor, beneficiary, member or beneficial shareholder or other equity owner been of, or a person having a power over, such Holder or Beneficial Owner if such Holder or Beneficial Owner is an estate, a trust, a limited liability company, a partnership, a corporation or other entity and the actual Holder of such Relevant Tax Jurisdiction.
(d) If the Issuer is required to pay Additional Amounts with respect to the Notes. Upon request, the Issuer shall provide will notify the Trustee and the applicable Paying Agent pursuant to an Officers’ Certificate that specifies the Additional Amounts payable with official receipts or other documentation satisfactory respect to the Notes and when the Additional Amounts are payable. If the Trustee evidencing and the applicable Paying Agent do not receive such an Officers’ Certificate from the Issuer, the Trustee and the applicable Paying Agent may rely on the absence of such an Officers’ Certificate in assuming that no such Additional Amounts are payable.
(e) All references in this Indenture to the payment of principal, premium or interest, if any, on any Notes or any payment made by the Taxes with respect Issuer or the Guarantors shall be deemed to which include Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized extent that, in that context, Additional Amounts are, were or any political subdivision or taxing authority or agency thereof or thereinwould be payable.
Appears in 1 contract
Sources: Indenture (Energizer Holdings, Inc.)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or (a) All payments made by the interpretation or administration thereof to withhold or deduct any amount from any payment made Issuers under or with respect to its Guarantee 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 or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) Taxes imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or Taxing Authority in any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor an Issuer is organized or is otherwise resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”), unless an Issuer is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If an Issuer is 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, such Guarantor shall Issuer will pay as additional interest such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders each Holder of Notes (including Additional Amounts) after such withholding or deduction shall not be less than will equal the amount the Holders Holder would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay no Additional Amounts does not apply will be payable with respect to (a) any Taxes Tax that would not have been so imposed imposed, payable or due:
(1) but for the Holder or beneficial owner of Notes not dealing at arm’s length with the Issuers (for purposes of the Income Tax Act (Canada)) at the time of the making of such payment;
(2) but for the existence of any present or former connection between the relevant Holder (or between the beneficial owner of, or person ultimately entitled to obtain an interest in, such Notes, including a fiduciary, settlorsettler, beneficiary, member member, partner, shareholder or shareholder other equity interest owner of, or possessor of power over the relevant Holderover, such Holder or beneficial owner, if the relevant such Holder or beneficial owner is an estate, nomineetrust, trust partnership, limited liability company, corporation or corporationother entity) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) other than the mere receipt of such payment or the ownership or holding of the Notes outside or enforcement of rights thereunder or the receipt of payments in respect thereof;
(3) but for the failure by the Holder or beneficial owner to satisfy any certification, identification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction or arm’s-length relationship with the Issuers of the jurisdiction Holder or beneficial owner or otherwise establishing the right to the benefit of organization an exemption from, or incorporation reduction in the rate of, withholding or deduction, if (a) such compliance is required by law, regulation, administrative practice or an applicable treaty of the Guarantor); Relevant Taxing Jurisdiction as a precondition to exemption from, or a reduction in the rate of deduction of withholding of, such Taxes and (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental chargethe Issuers have provided the Trustee with 30 days’ prior written notice of such requirement; nor shall such Guarantor be required to pay Additional Amounts or
(14) if the payment could have been made without such deduction or withholding if the beneficiary presentation of the Notes (where presentation is required) for payment had presented the Notes for payment occurred within 30 days after the date on which such payment or such Notes became was due and payable or the date on which payment thereof is was duly provided for, whichever is later later.
(except to b) Additional Amounts will not be payable if the extent that the Holder would have been beneficial owner of, or person ultimately entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period)obtain an interest in, or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder who is a fiduciary or partnership or any person other than not the sole beneficial owner of such paymentpayments, or is a fiduciary or partnership (including any entity or arrangement treated as a partnership by the Relevant Taxing Jurisdiction), to the extent that a any beneficial owner, beneficiary or settlor settler with respect to such fiduciary, a fiduciary or any partner or member of such a partnership or the beneficial owner of such payment would not have been entitled to the such Additional Amounts with respect to such payments had such beneficial owner, beneficiary, settlorsettler, partner or member received directly its beneficial or beneficial owner been the actual Holder distributive shares of such payments. In addition, Additional Amounts will not be payable with respect to (i) any Tax which is payable otherwise than by withholding from payments of, or in respect of principal of, or any interest on, the Notes. , (ii) any withholding or deduction that relates to any estate, inheritance, gift or similar tax, duty, assessment or governmental charge, (iii) any withholding or deduction imposed on a payment to an individual and required to be made pursuant to European Union Directive on the taxation of savings income which was adopted by the ECOFIN Council (the Council of EU Finance and Economic Ministers), or any law implementing or complying with, or introduced to conform to, such directive, or pursuant to related measures entered into on a reciprocal basis between member states of the European Union and certain non-European Union countries and dependent or associated territories and (iv) any Tax imposed or levied by, or on behalf of, the United States of America or any State or other political subdivision thereof.
(c) Whenever in this Indenture there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under or with respect to any of the Notes, 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.
(d) Upon request, the Issuer shall Issuers will provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of Additional Amounts.
(e) The Issuers will pay any present or future stamp, court or documentary taxes, or any other excise or property taxes, charges or similar levies which arise in a Relevant Taxing Jurisdiction from the Taxes execution, delivery or registration of the Notes and any such taxes, charges or similar levies imposed by any jurisdiction resulting from, or required to be paid in connection with, the enforcement of the Notes or any other such document or instrument following the occurrence of any Event of Default with respect to which the Notes.
(f) At least 10 days prior to the first Interest Payment Date, and at least 10 days prior to each date of payment of principal and any premium or interest if there has been any change with respect to the matters set forth in the relevant Officer’s Certificate, the Company will furnish the Trustee and the Company’s principal Paying Agent or Paying Agents, if other than the Trustee, with an Officer’s Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and any premium or interest on the Notes or under the related Guarantee shall be made to Holders of the Notes without withholding for or on account of any present or future Taxes imposed or levied by or on behalf of any Relevant Taxing Jurisdiction. If any such withholding shall be required, then such Officer’s Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders and the Company or the Guarantor (only if a payment under the Guarantee is then due in respect of such Securities), as the case may be, will pay to the Trustee or such Paying Agent or Paying Agents the Additional Amounts are paidrequired by this Section 4.25. The Each of the Issuers and the Guarantors covenants to indemnify each of the Trustee and any Paying Agent for, and to hold each of them harmless against, any loss, liability or expense arising out of or in connection with actions taken or omitted by any of them in reliance on any Officer’s Certificate furnished pursuant to this Section 4.25.
(g) Without prejudice to the survival of any other obligation contained in this Indenture, the obligations described of the Issuers and the Guarantors under this Section 4.25 shall survive any termination, defeasance or discharge the termination of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person the payment of all amounts payable to the Issuer is organized Holders under this Indenture or any political subdivision or taxing authority or agency thereof or thereinwith respect to this Indenture.
Appears in 1 contract
Additional Amounts. If a Guarantor that is (a) All payments made by a Foreign Subsidiary Guarantor in respect of a Guarantee will be made free and clear of and without withholding or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made under or with respect to its Guarantee for deduction for, or on account of of, any present or future taxTaxes unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, dutyor on account of, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) any Taxes imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such the relevant Foreign Guarantor is then incorporated or organized or resident for tax purposes or purposes, any jurisdiction from or through which payment under its Guarantee on behalf of such Foreign Guarantor is made or any political subdivision or governmental authority thereof or therein having power to tax (each each, a “Relevant Taxing Tax Jurisdiction”), such will at any time be required to be made from any payments made by or on behalf of the relevant Foreign Guarantor shall under its Guarantee, including payments of principal, redemption price, purchase price, interest or premium, the relevant Foreign Guarantor will pay such additional amounts (the “Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments (including payments of principal, redemption price, interest or premium) by the Holders each Holder (including Additional Amounts) after such withholding or deduction shall not be less than will equal the amount the Holders 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 the foregoing obligation to pay no Additional Amounts does not apply to will be payable with respect to:
(ai) any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant Holder or the beneficial owner of the Note or Guarantee (or between a fiduciary, settlorsettler, beneficiary, partner, member or shareholder of, or possessor of power over the relevant HolderHolder or beneficial owner, if the relevant Holder is an estate, nominee, trust trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (relevant Tax Jurisdiction, other than by the mere receipt of such payment or the ownership acquisition or holding of any Note or the Notes outside enforcement or receipt of payment under or in respect of any Note or Guarantee;
(ii) any Taxes imposed or withheld as a result of the jurisdiction of organization or incorporation failure of the Guarantor); Holder or (b) beneficial owner of any estateNote or Guarantee to comply with any written request, inheritancemade to that Holder or beneficial owner within a reasonable period before any such withholding or deduction would be payable, giftby an Issuer or a Foreign Guarantor to provide timely or accurate information concerning the nationality, sales, excise, transfer, personal property tax residence or identity of such Holder or beneficial owner or to make any valid or timely declaration or similar taxclaim or satisfy any certification information or other reporting requirements (in each case, assessment to the extent such Holder or governmental charge; nor shall such Guarantor be beneficial owner is legally eligible to do so), which is required or imposed by a statute, treaty, regulation or administrative practice of the relevant Tax Jurisdiction as a precondition to pay Additional Amounts (1) if exemption from, or reduction in the payment could have been made without such rate of deduction or withholding if the beneficiary of such Taxes;
(iii) any Taxes that are imposed or withheld as a result of the payment had presented the Notes presentation of any Note or Guarantee for payment within (where presentation is required) more than 30 days after the date on which such relevant payment is first made available for payment to the Holder or such Notes became due and payable or the date on which payment thereof is duly provided for, whichever is later beneficial owner (except to the extent that the Holder or beneficial owner would have been entitled to Additional Amounts had the Notes Note been presented on the last day of such 30-30 day period);
(iv) any estate, inheritance, gift, value added, sale, excise, transfer, personal property or similar tax or assessment;
(2v) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to any Note or Guarantee;
(vi) any Tax imposed on or with respect to any payment of principal of (or premium, by a Foreign Guarantor to the Holder if any, on) or interest on such Notes to any Holder who is a fiduciary fiduciary, partnership, limited liability company or partnership or any person other than the sole beneficial owner of such payment, payment to the extent that a beneficiary or settlor with respect to Taxes would not have been imposed on such fiduciary, a member of payment had such a partnership or Holder been the sole beneficial owner of such Note or Guarantee;
(vii) any Taxes that are imposed or withheld as a result of the presentation of any Note or Guarantee for payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member by or on behalf of a Holder or beneficial owner been the actual Holder of such Notes or Guarantee who would have been able to avoid such withholding or deduction by presenting the relevant Note or Guarantee to, or otherwise accepting payment from, another paying agent;
(viii) any Taxes that are imposed or withheld pursuant to Sections 1471 through 1474 of the Code, 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 foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code; or
(ix) any combination of items (i) through (viii) above.
(b) The relevant Foreign Guarantor will pay when due any present or future stamp, transfer, court or documentary taxes or any other excise or property taxes that arise in a Tax Jurisdiction with respect to the initial execution, delivery or registration of the Guarantees or any other document or instrument relating thereto (other than the Notes. Upon request, the Issuer shall provide ).
(c) The relevant Foreign Guarantor will use reasonable efforts to furnish to the Trustee with official and the Holders, within a reasonable period of time after the due date for the payment of any Taxes so deducted or withheld pursuant to applicable law, either certified copies of tax receipts or evidencing such payment by such Foreign Guarantor (in such form as provided in the ordinary course by the relevant Tax Jurisdiction and as is reasonably available to the Foreign Guarantor), or, if such receipts are not obtainable, other documentation evidence of such payments by such Foreign Guarantor reasonably satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or thereinHolders.
Appears in 1 contract
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment (a) All payments made under or with respect to its Guarantee the Notes or the Note Guarantees shall 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 (including related penalties, interest and other liabilities related theretoliabilities) (hereinafter hereinafter, “Taxes”) imposed or levied by or on behalf of (1) the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to taxUnited Kingdom, or within (2) the United States, (3) any other jurisdiction in which such the Issuer or any Note Guarantor is organized or is otherwise resident for tax purposes or purposes, (4) any jurisdiction from or through which payment under its Guarantee is made and (each 5) any political subdivision or governmental authority or agency of or in any of the foregoing having the power to tax (each, a “Relevant Taxing Jurisdiction”), such unless the Issuer or any Note Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(b) If the Issuer or a 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 or the Note Guarantees, the Issuer or the applicable Note Guarantor shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders and beneficial owners (including Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders and beneficial owners would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to to:
(a1) 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 over, the relevant HolderHolder or beneficial owner, if the relevant Holder or beneficial owner is an estate, nominee, trust trust, partnership or corporation) and the Relevant Taxing Jurisdiction (other than the mere receipt of such payment or the ownership or holding of the Notes outside of the jurisdiction of organization or incorporation of the Guarantorsuch Note); or ;
(b2) any estate, inheritance, gift, sales, excise, transfer, personal property tax Tax or similar taxTax;
(3) any Taxes which are payable otherwise than by withholding from payments of (or in respect of) principal of, assessment or governmental charge; nor shall any premium or interest on, the Notes;
(4) any Taxes that are imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of a Note with a request by the Issuer addressed to the Holder or such Guarantor be beneficial owner (A) to provide information concerning the nationality, residence, identity or present or former connection with a Relevant Taxing Jurisdiction of the Holder or such beneficial owner or (B) to make any declaration or other similar claim or satisfy any certification, information or reporting requirement, which, in the case of (A) or (B), is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such Tax;
(5) any withholding or deduction imposed on a payment to an individual required to pay Additional Amounts be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings income or any law implementing or introduced in order to conform to, such Directive;
(6) any combination of items (1), (2), (3), (4) if the payment could and (5) above;
(7) any Taxes that would not have been made without such deduction so imposed, withheld or withholding deducted if the beneficiary of the payment had presented the Notes Note for payment within 30 days after the date on which such payment or such Notes 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 such beneficiary would have been entitled to Additional Amounts had the Notes Note been presented on the last day of such the 30-day period), ;
(8) any payment under or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes a Note to any Holder who is a fiduciary or partnership or any person 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 of such Notes. Upon requestNote; or
(9) any withholding or deduction that is imposed on a Note presented for payments by or on behalf of a Holder or beneficial owner who would be able to avoid a withholding or deduction by presenting the relevant Note to another Paying Agent in a Member State.
(c) If the Issuer or any Note Guarantor will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or the relevant Note Guarantee, as applicable, the Issuer or such Note Guarantor, as applicable, will deliver to the Trustee at least 10 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 10th day prior to that payment date, in which case the Issuer or the Note Guarantor, as applicable, shall notify the Trustee promptly thereafter but in no event later than two Business Days prior to the date of payment) notice of payment in the form of an Officer’s Certificate. In either circumstance, the Officer’s Certificate must state that Additional Amounts will be payable and the amount so payable. The Officer’s Certificate must also set forth any other information necessary to enable the Paying Agent to pay Additional Amounts to Holders and beneficial owners on the relevant payment date.
(d) The Issuer or any Note Guarantor will (i) make such 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 provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. Certificated copies of such receipts and such other documentation shall be made available to Holders upon request and will be made available at the offices of the Paying Agent if the Notes are then listed on the Luxembourg Stock Exchange. The obligations described Issuer will attach to such copies an Officer’s Certificate stating (x) that the amount of withholding Taxes evidenced by such copies was paid in connection with any payment made under or with respect to the Notes or any Note Guarantee and (y) the amount of such withholding Taxes paid per $1,000 or £1,000 of Notes.
(e) Whenever in this Indenture there is mentioned, in any context, the payment of principal, purchase prices in connection with a purchase of Notes, interest, or any other amount payable on or with respect to any of the Notes or any Note Guarantee, that reference shall be deemed to include payment of Additional Amounts provided for in this section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The Issuer or a Note Guarantor will 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 the Notes, the Note Guarantees, this Indenture or any other related document or instrument, or the receipt of any payments with respect to the Notes or the Note Guarantees, excluding taxes, charges or similar levies imposed by any jurisdiction that is not a Relevant Taxing Jurisdiction, and the Issuer will agree to indemnify the Holders or the Trustee for any such taxes paid by the Holders or the Trustee.
(g) The preceding provisions of this Section shall 2.13 will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer or any Note Guarantor is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Virgin Media Inc.)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required (a) All payments by applicable law the Issuer in respect of the Notes or by Ultrapar or Ipiranga in respect of the interpretation Guarantees will be made without withholding or administration thereof to withhold or deduct any amount from any payment made under or with respect to its Guarantee 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) (hereinafter “Taxes”) charges of whatever nature imposed or levied by or on behalf of the government of the jurisdiction of organization Luxembourg, Brazil or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction or political subdivision thereof from or through which a payment is made or in which such Guarantor the Issuer, Ultrapar or Ipiranga (or any successor to the Issuer, Ultrapar or Ipiranga) is organized or is a resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made having power to tax (each a “Relevant Taxing Jurisdiction”), unless the Issuer, Ultrapar or Ipiranga, as applicable, is compelled by law to deduct or withhold such Guarantor shall taxes, duties, assessments, or governmental charges. In such event, the Issuer, Ultrapar or Ipiranga, as applicable, will make such deduction or withholding, make payment of the amount so withheld to the appropriate governmental authority and pay such additional amounts (“Additional Amounts”) as may be necessary so to ensure that the net amount received amounts receivable by the Holders (including Additional Amounts) of Notes after such withholding or deduction shall not be less than equal the amount the Holders respective amounts of principal and interest which would have been received if in respect of the Notes in the absence of such Taxes had not been withheld withholding or deducted; provided, however, that the foregoing obligation to pay deduction (“Additional Amounts”). No such Additional Amounts does not apply shall be payable:
(i) to, or to (a) a third party on behalf of, a Holder who is liable for any Taxes that would not have been so imposed but for present or future taxes, duties, assessments or governmental charges in respect of such Note by reason of the existence of any present or former connection between the relevant such Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over the relevant such Holder, if the relevant such Holder is an estate, nomineea trust, trust a partnership, a limited liability company or a corporation) or beneficial owner and the Relevant Taxing Jurisdiction Jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, partner, member or shareholder) or beneficial owner being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein, other than the mere receipt of such payment or the ownership or holding of the Notes outside Note or enforcement of rights and the jurisdiction receipt of organization payments with respect to the Note;
(ii) in respect of any present or incorporation of the Guarantor); or (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar future tax, assessment or other governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if the payment could charge that would not have been made without such deduction or withholding if so imposed but for the beneficiary presentation by the Holder of the payment had presented the Notes any Note, where presentation is required, for payment within on a date more than 30 days after the date on which such payment or such Notes became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(iii) to, or to a third party on behalf of, a Holder who is later (except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day liable for any present or future taxes, duties, assessments or other governmental charges in respect of such 30-day period)Note by reason of such Holder’s failure to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, if (1) compliance is required by the Relevant Taxing Jurisdiction as a precondition to relief or exemption from, or reduction in the rate of, the tax, assessment or other governmental charge and (2) the Issuer has given the Holders or such third party at least 30 days’ notice that Holders will be required to provide such certification, identification or other requirement;
(iv) in respect of any estate, inheritance, gift, sales, transfer, capital gains, excise or personal property or similar tax, assessment or governmental charge;
(v) in respect of any tax, assessment or other governmental charge which is payable other than by deduction or withholding from payments of principal of or interest on the Note or by direct payment by the Issuer or Ultrapar or Ipiranga in respect of claims made against the Issuer or Ultrapar or Ipiranga;
(vi) in respect of any taxes required to be deducted or withheld pursuant to Section 1471(b) of the Code, or otherwise imposed pursuant to Sections 1471 through 1474 of the Code, any regulations or agreements thereunder, official interpretations thereof or any law implementing an intergovernmental approach thereto; or
(vii) in respect of any combination of the above.
(b) In addition, no Additional Amounts shall be paid with respect to any payment of principal of (or premium, if any, on) or interest on such Notes a Note to any a Holder who is a fiduciary fiduciary, a partnership, a limited liability company or partnership or any person other than the sole beneficial owner of such payment, that payment to the extent that payment on such Note would be required by the laws of the Relevant Taxing Jurisdiction to be included in the income, for tax purposes, of a beneficiary or settlor with respect to such the fiduciary, a member of such that partnership, an interest holder in a partnership limited liability company or the a beneficial owner of such payment who would not have been entitled to the Additional Amounts had such that beneficiary, settlor, member or beneficial owner been the actual Holder of such NotesHolder. Upon requestThe Notes are subject in all cases to any tax, fiscal or other law, regulation or administrative or judicial interpretation. Except as specifically provided above, neither the Issuer nor the Guarantors shall provide the Trustee with official receipts or other documentation satisfactory be required to the Trustee evidencing the make a payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance withholding tax assessment or discharge of this Indenture and shall apply mutatis mutandis to governmental charge imposed by any jurisdiction in which any successor Person to the Issuer is organized government or any political subdivision or taxing authority or agency thereof or therein.
(c) In the event that Additional Amounts actually paid with respect to the Notes described above are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and, as a result thereof such Holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess to the Issuer, Ultrapar or Ipiranga.
(d) Any reference in this Indenture or the Notes to principal, interest or any other amount payable in respect of the Notes by the Issuer or the Guarantees by Ultrapar or Ipiranga will be deemed also to refer to any Additional Amount, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this Section.
(e) The obligation described above will survive termination or discharge of this Indenture, payment of the Notes and/or the resignation or removal of the Trustee or any agent hereunder.
Appears in 1 contract
Sources: Indenture (Ultrapar Holdings Inc)
Additional Amounts. If a (a) The Company and the Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made will make all payments under or with respect to its the Notes and the Guarantee 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 government United States of the jurisdiction of organization America or incorporation of such Guarantor Bermuda, or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”), such unless the Company or the Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. As used in this Note, the term “Taxes” shall not include (i) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment, or governmental charge; (ii) any Tax payable otherwise than by withholding from payments in respect of the Notes or the guarantees; and (iii) any Tax imposed by reason of payments on the Notes being treated as “contingent interest” within the meaning of Section 871(h)(4) of the Internal Revenue Code of 1986, as amended (the “Code”).
(b) If the Company or the Guarantor is required to withhold or deduct any amount for or on account of Taxes imposed by a Taxing Jurisdiction from any payment made under or with respect to the Notes or the Guarantee, the Company or the Guarantor shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by Holders of the Holders (including Additional Amounts) Notes after such withholding or deduction shall (including any withholding or deduction attributable to Additional Amounts payable hereunder) will not be less than the amount the such Holders would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to (a) any Taxes that to the extent such Taxes would not have been so imposed imposed:
(1) but for the existence relevant Holder (or the beneficial owner of such Notes) (i) having any present or former connection between with the Taxing Jurisdiction, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code to the Company or the Guarantor, (iii) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Company or the Guarantor entitled to vote, (iv) being a bank for United States federal income tax purposes whose receipt of interest on the Note is described in Section 881(c)(3)(A) of the Code or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Note;
(2) but for the failure of the relevant Holder (or between the beneficial owner of such Notes) to use its reasonable best efforts, to the extent such Holder (or beneficial owner) is legally entitled to do so, to comply upon written notice by the Company or the Guarantor delivered 60 days prior to any payment date with a fiduciaryrequest to satisfy any certification, settloridentification or other reporting requirements, beneficiarywhich shall include any applicable forms or instructions, member or shareholder ofwhether imposed by statute, treaty, regulation, or possessor of power over administrative practice, concerning the relevant Holder, if the relevant Holder is an estate, nominee, trust nationality or corporation) and the Relevant Taxing Jurisdiction (other than the mere receipt residence of such payment Holder or the ownership connection of such Holder with the Taxing Jurisdiction;
(3) but for an election by the Holder of such Notes, the effect of which is to make one or holding more payments in respect of the such Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or (b) any estate, inheritance, gift, sales, excise, transfer, personal property subject to United States federal income tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts withholding tax provisions;
(14) if the payment could have been made without such deduction or withholding if the beneficiary of the payment relevant Holder had presented the Notes such Note for payment within 30 days after the date on which such payment 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 that the Holder would have been entitled to Additional Amounts had the Notes such Note been presented on the last day of such 30-day period), or ;
(25) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes Note to any Holder 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 of such Notes. Upon requestNote (but only if there is no material cost or expense associated with transferring such Notes to such beneficiary, partner or beneficial owner and no restriction on such transfer that is outside the Issuer shall provide the Trustee with official receipts control of such beneficiary, partner or other documentation satisfactory to the Trustee evidencing the payment beneficial owner); and
(6) any combination of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any terminationitems (1), defeasance (2), (3), (4) or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.(5) above
Appears in 1 contract
Sources: First Supplemental Indenture (Assured Guaranty LTD)
Additional Amounts. If All payments made by the Co-Issuers or a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made under or with respect to its Guarantee the Notes or 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 or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) Taxes imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or Taxing Authority in any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such a Co-Issuer or Guarantor is organized or is otherwise resident or deemed resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”), unless a Co-Issuer or Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If a Co-Issuer or Guarantor is 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 the Guarantees, such Co-Issuer or Guarantor shall will (a) make such withholding or deduction and (b) remit the full amount deducted or withheld to the relevant authority in accordance with and in the time required under applicable law and (c) pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders each Holder of notes (including Additional Amounts) after such withholding or deduction shall not be less than will equal the amount the Holders Holder would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay no Additional Amounts does not apply will be payable with respect to (a) any Taxes estate, inheritance, gift, sales, capital gains, excise or personal property tax or any similar Tax or governmental charge or any Tax that would not have been so imposed imposed, payable or due:
(1) but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, member or shareholder the beneficial owner of, or possessor of power over the relevant Holderperson ultimately entitled to obtain an interest in, if the relevant Holder is an estate, nominee, trust or corporationsuch notes) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) other than the mere receipt of such payment acquisition, ownership, holding or the ownership or holding disposition of the Notes outside or enforcement of rights thereunder or the jurisdiction receipt of organization payments in respect thereof;
(2) but for the failure to satisfy any certification, identification or incorporation of other reporting requirements whether imposed by statute, treaty, regulation or administrative practice; provided, however, that the Guarantor); Issuer has delivered a request to the 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;
(b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (13) if the payment could have been made without such deduction or withholding if the beneficiary presentation of the notes (where presentation is required) for payment had presented the Notes for payment occurred within 30 days after the date on which such payment or such Notes became was due and payable or the date on which payment thereof is was duly provided for, whichever is later (except later, but only to the extent that the Holder such Additional Amounts would not have been entitled to Additional Amounts required had the Notes note been presented on the last day of such 30-the applicable 30 day period;
(4) but for the fact that the Holder does not deal at arm’s length (within the meaning of the Income Tax Act (Canada)) with the Issuer, the Co-Issuer or a Guarantor; or
(5) but for any combination of the items listed above. Each of the Co-Issuers and the Guarantors will indemnify and hold harmless each Holder and beneficial owner from and against (x) any Taxes (other than Taxes excluded by clauses (1) through (5) above) levied or imposed on a Holder or owner as a result of payments made under or with respect to the Notes (including any such Tax imposed under Part XIII of the Income Tax Act (Canada) and arising on an assignment (other than an assignment that is not effected in accordance with the provisions of this Indenture) of a note to a person resident of or deemed resident of Canada that is withheld from or levied or imposed on a Holder or beneficial owner), and (y) any Taxes (other than Taxes excluded by clauses (1) through (5) above) so levied or (2) 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 (y) above had not been imposed. In any context, the payment of amounts based upon the principal amount of (the Notes or premiumof principal, if any, on) interest or interest on such Notes of any other amount payable under or with respect to any Holder who is a fiduciary or partnership or any person other than of the sole beneficial owner Notes, shall be deemed to include mention of such payment, the payment of Additional Amounts to the extent that a beneficiary or settlor with respect to that, in such fiduciarycontext, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiaryare, settlor, member were or beneficial owner been the actual Holder of such Noteswould be payable in respect thereof. Upon request, the Issuer shall will provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes giving rise to the Additional Amounts. The Co-Issuers will pay any present or future stamp, registration, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any interest and penalties related thereto) which arise in any jurisdiction from the execution, delivery or registration of the Notes or Guarantees or any other document or instrument referred to therein, or the receipt of any payments with respect to which the Notes or Guarantees (“Documentary Taxes”). The obligation to pay Additional Amounts are paid. The obligations and Documentary Taxes under the terms and conditions described under this Section shall above will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or thereinIndenture.
Appears in 1 contract
Sources: Senior Subordinated Indenture (Infosat Communications LP)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required (a) All payments by applicable law the Issuer in respect of the Notes or by Ultrapar or Ipiranga in respect of the interpretation Guarantees will be made without withholding or administration thereof to withhold or deduct any amount from any payment made under or with respect to its Guarantee 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) (hereinafter “Taxes”) charges of whatever nature imposed or levied by or on behalf of the government of the jurisdiction of organization Luxembourg, Brazil or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction or political subdivision thereof from or through which a payment is made or in which such Guarantor the Issuer, Ultrapar or Ipiranga (or any successor to the Issuer, Ultrapar or Ipiranga) is organized or is a resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made having power to tax (each a “Relevant Taxing Jurisdiction”), unless the Issuer, Ultrapar or Ipiranga, as applicable, is compelled by law to deduct or withhold such Guarantor shall taxes, duties, assessments, or governmental charges. In such event, the Issuer, Ultrapar or Ipiranga, as applicable, will make such deduction or withholding, make payment of the amount so withheld to the appropriate governmental authority and pay such additional amounts (“Additional Amounts”) as may be necessary so to ensure that the net amount received amounts receivable by the Holders (including Additional Amounts) of Notes after such withholding or deduction shall not be less than equal the amount the Holders respective amounts of principal and interest which would have been received if in respect of the Notes in the absence of such Taxes had not been withheld withholding or deducted; provided, however, that the foregoing obligation to pay deduction (“Additional Amounts”). No such Additional Amounts does not apply shall be payable:
(i) to, or to (a) a third party on behalf of, a Holder who is liable for any Taxes that would not have been so imposed but for present or future taxes, duties, assessments or governmental charges in respect of such Note by reason of the existence of any present or former connection between the relevant such Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over the relevant such Holder, if the relevant such Holder is an estate, nomineea trust, trust a partnership, a limited liability company or a corporation) or beneficial owner and the Relevant Taxing Jurisdiction Jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, partner, member or shareholder) or beneficial owner being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein, other than the mere receipt of such payment or the ownership or holding of the Notes outside Note or enforcement of rights and the jurisdiction receipt of organization payments with respect to the Note;
(ii) in respect of any present or incorporation of the Guarantor); or (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar future tax, assessment or other governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if the payment could charge that would not have been made without such deduction or withholding if so imposed but for the beneficiary presentation by the Holder of the payment had presented the Notes any Note, where presentation is required, for payment within on a date more than 30 days after the date on which such payment or such Notes became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(iii) to, or to a third party on behalf of, a Holder who is later (except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day liable for any present or future taxes, duties, assessments or other governmental charges in respect of such 30-day period)Note by reason of such Holder’s failure to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, if (1) compliance is required by the Relevant Taxing Jurisdiction as a precondition to relief or exemption from, or reduction in the rate of, the tax, assessment or other governmental charge and (2) the Issuer has given the Holders or such third party at least 30 days’ notice that some or all Holders will be required to provide such certification, identification or other requirement;
(iv) in respect of any estate, inheritance, gift, sales, transfer, capital gains, excise or personal property or similar tax, assessment or governmental charge;
(v) in respect of any tax, assessment or other governmental charge which is payable other than by deduction or withholding from payments of principal of or interest on the Note or by direct payment by the Issuer or Ultrapar or Ipiranga in respect of claims made against the Issuer or Ultrapar or Ipiranga;
(vi) in respect of any taxes required to be deducted or withheld pursuant to section 1471(b) of the Code, or otherwise imposed pursuant to sections 1471 through 1474 of the Code, any regulations or agreements thereunder, official interpretations thereof or any law implementing an intergovernmental approach thereto; or
(vii) in respect of any combination of the above.
(b) In addition, no Additional Amounts shall be paid with respect to any payment of principal of (or premium, if any, on) or interest on such Notes a Note to any a Holder who is a fiduciary fiduciary, a partnership, a limited liability company or partnership or any person other than the sole beneficial owner of such payment, that payment to the extent that payment on such Note would be required by the laws of the Relevant Taxing Jurisdiction to be included in the income, for tax purposes, of a beneficiary or settlor with respect to such the fiduciary, a member of such that partnership, an interest holder in a partnership limited liability company or the a beneficial owner of such payment who would not have been entitled to the Additional Amounts had such that beneficiary, settlor, member or beneficial owner been the actual Holder of such NotesHolder. Upon requestThe Notes are subject in all cases to any tax, fiscal or other law, regulation or administrative or judicial interpretation. Except as specifically provided above, neither the Issuer nor the Guarantors shall provide the Trustee with official receipts or other documentation satisfactory be required to the Trustee evidencing the make a payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance withholding tax assessment or discharge of this Indenture and shall apply mutatis mutandis to governmental charge imposed by any jurisdiction in which any successor Person to the Issuer is organized government or any political subdivision or taxing authority or agency thereof or therein.
(c) In the event that Additional Amounts actually paid with respect to the Notes described above are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and, as a result thereof such Holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess to the Issuer, Ultrapar or Ipiranga.
(d) Any reference in this Indenture or the Notes to principal, interest or any other amount payable in respect of the Notes by the Issuer or the Guarantees by Ultrapar or Ipiranga will be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this Section, unless the context requires otherwise.
Appears in 1 contract
Sources: Indenture (Ultrapar Holdings Inc)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made All payments under or with respect to its the Notes or a Guarantee will 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 (including penalties, interest and other liabilities related thereto) (hereinafter collectively, “Taxes”) imposed or levied by or on behalf of the government of the countries in which each of the Issuer, the relevant Guarantor and, in each case, any successor thereof (each, a “Payor”) is organized, or any other jurisdiction of organization in which the relevant Payor is organized or incorporation of such Guarantor is otherwise resident for tax purposes, or any jurisdiction from or through which payment is made, in each case, including any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”), unless the relevant Payor is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof. If a 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 a Guarantee, as applicable, such Guarantor shall Payor will be required to pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders (including Additional Amounts) any holder after such withholding or deduction shall not (including any such withholding or deduction in respect of such Additional Amounts) will be less than equal to the amount the Holders holder would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to to:
(a1) any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant Holder holder or beneficial owner of a Note (or between a fiduciary, settlor, beneficiarymember, member partner or shareholder of, or possessor of power over the relevant Holderholder, if the relevant Holder holder is an estate, nominee, trust trust, partnership or corporation) and the Relevant Taxing Jurisdiction including, without limitation, such holder or beneficial owner being or having been a domiciliary, national or resident thereof, or being or having been present or engaged in a trade or business therein or having had a permanent establishment or fixed based therein (other than a connection resulting from the mere receipt of such payment or payment, the ownership or holding of such Note or enforcement of rights thereunder or under the Notes outside of the jurisdiction of organization or incorporation of the GuarantorGuarantee); or ;
(b2) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or other governmental charge; nor shall ;
(3) any Taxes which are payable otherwise than by withholding from payments of (or in respect of) principal of (or premium, if any, on), or any interest on, the Notes;
(4) any Taxes that are imposed, deducted or withheld by reason of the failure to comply by the holder or the beneficial owner of a Note with a written request from the Issuer, after reasonable notice (provided that such Guarantor notice must be given at least 30 days prior to the first payment date with respect to which this item applies), (A) to provide information concerning the nationality, residence, identity or connection to the Relevant Taxing Jurisdiction of the holder or such beneficial owner or (B) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (A) or (B), is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from or refund of all or part of such Tax;
(5) any Taxes that are required to pay Additional Amounts be withheld or deducted on a payment to an individual pursuant to any European Union Council Directive regarding the taxation of savings income (1including European Council Directive 2003/48/EC) or pursuant to any law implementing, or introduced in order to conform to, any such Directive;
(6) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented (where presentation is required) the Notes Note for payment within 30 days after the date on which such payment or such Notes 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 holder would have been entitled to Additional Amounts had the Notes Note been presented on the last day of such the 30-day period), or ;
(27) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes Note to any Holder holder who is a fiduciary or partnership or any person 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 holder of such NotesNote;
(8) a Note presented for payment (where presentation is required) by or on behalf of a holder or beneficial owner who would have reasonably been able to avoid a withholding or deduction by presenting the relevant Note to another paying agent in a member state of the European Union; or
(9) any combination of items (1) through (8) above. Upon request, the Issuer shall will provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paidAmounts. The obligations described under this Section shall survive any termination, defeasance or discharge Copies of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person such documentation will be made available to the Issuer is organized or any political subdivision or taxing authority or agency thereof or thereinholders of the Notes upon request.
Appears in 1 contract
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment All payments made under or with respect to its 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) (hereinafter “Taxes”) imposed or levied by or on behalf of (1) the government of United States, Germany, Luxembourg, the jurisdiction of organization or incorporation of such Guarantor United Kingdom or any political subdivision or any governmental authority thereof or agency therein or thereof having the power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes or (2) any jurisdiction from or through which payment under its 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 a “Relevant Taxing Jurisdiction”), collectively, “Taxes,” unless the Issuer, 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 agency provided, however, that in determining what withholding is required by law for U.S. federal income and withholding tax purposes, the Issuer, a Guarantor or other applicable withholding agent shall be entitled to treat any payments on or in respect of the Notes or any Note Guarantee as if the Notes or any Note Guarantee were issued by a U.S. person as defined in section 7701(a)(30) of the Code. If the Issuer, any Guarantor or other applicable withholding agent 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 shall Guarantor, as the case may be, will be required to pay such additional amounts (amount — “Additional Amounts”) ” — as may be necessary so that the net amount received by the Holders (including Additional Amounts) received by each beneficial owner after such withholding or deduction shall (including any withholding or deduction on such Additional Amounts) will not be less than the amount the Holders such beneficial owner would have received if such Taxes had not been withheld or deducted; provided, A-4 however, that no Additional Amounts will be payable with respect to payments made to any beneficial owner to the foregoing extent such Taxes are imposed by reason of (i) such beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, otherwise than by the acquisition, ownership, holding or disposition of the Notes, the enforcement of rights under the Notes or under any Note Guarantee or the receipt of payments in respect of the Notes or any Note Guarantee, or (ii) such beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, 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 a Note or any Note Guarantee, a complete, correct and executed IRS Form W-8 or W-9 or successor form, as applicable, with all appropriate attachments); provided, however, that for purposes of this obligation to pay Additional Amounts, the Issuer, a Guarantor or other applicable withholding agent 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 U.S. person as defined in section 7701(a)(30) of the Code. Further, no Additional Amounts does not apply shall be payable with respect to (ai) any Taxes that would not have been so Tax on interest imposed but for by the existence United States or any political subdivision or governmental authority thereof or therein by reason of any present beneficial owner holding or former connection between 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 or (ii) any Tax on interest imposed 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 Code with respect to the Issuer or any Guarantor. The Issuer or 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 Holder authority as and when required in accordance with applicable law. The Issuer or Guarantor (as applicable) will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or between a fiduciary, settlor, beneficiary, member Guarantor (as applicable) of any Taxes so deducted or shareholder of, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust or corporation) and the withheld from each Relevant Taxing Jurisdiction (other than imposing such Taxes and will provide such certified copies to the mere receipt of such payment Trustee. Wherever in the Indenture or the ownership Notes or holding of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or (b) any estateNote Guarantee there are mentioned, inheritancein any context, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if 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 or such Notes became due and payable or the date on which payment thereof is duly provided forprincipal, whichever is later (except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (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 of the Notes or any Note Guarantee, such reference shall be deemed to include payment of principal of (or premium, if any, on) or interest on such Notes to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, Additional Amounts as described under this heading to the extent that a beneficiary or settlor with respect to that, in such fiduciarycontext, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiaryare, settlor, member were or beneficial owner been the actual Holder of such Noteswould be payable in respect thereof. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the Taxes 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 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 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 Additional Amounts arise in the jurisdiction in which the Issuer or new issuer is organized (or any political subdivision thereof or therein) and are paidpayable 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 described under in this Section shall Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person Paragraph 2 to the Issuer is organized or any political subdivision or taxing authority or agency thereof or thereinGuarantor shall apply to any successor(s) thereto.
Appears in 1 contract
Additional Amounts. If a All payments and deliveries made by, or on behalf of, the Company (including, for the purposes of this section, any Guarantor that is a Foreign Subsidiary and any successor to the Company or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made Guarantor) under or with respect to its Guarantee for the notes, including, but not limited to, payments of principal and payments of interest, will be made without withholding or deduction for, or on account of of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other governmental charge charges of whatever nature (including penalties, interest and other liabilities penalties related thereto) (hereinafter collectively, “Applicable Taxes”) imposed or levied by or within the jurisdiction in which the Company is, for tax purposes, organized or resident or doing business or through which payment is made or deemed made by, or on behalf of, the Company for purposes of the government tax law of the that jurisdiction of organization or incorporation of such Guarantor or (or, in each case, any political subdivision or any taxing authority thereof or agency therein or thereof having power to taxtherein) (each, or within any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each as applicable, a “Relevant Taxing Jurisdiction”), unless such Guarantor withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company shall pay to the Holder of each note such additional amounts (the “Additional Amounts”) as may be necessary so to ensure that the net amount received by the Holders (including Additional Amounts) beneficial owners after such withholding or deduction shall not be less than (and after deducting any Applicable Taxes on the amount Additional Amounts) will equal the Holders amounts that would have been received if by such Taxes beneficial owners had not no such withholding or deduction been withheld or deductedrequired; provided, however, that the foregoing obligation to pay no Additional Amounts does not apply to will be payable:
(a) For or on account of:
(1) any Applicable Taxes that to the extent such Applicable Taxes would not have been so imposed but for for:
(A) the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor beneficial owner of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust or corporation) such note and the Relevant Taxing Jurisdiction, including, without limitation, being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction (other than or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein, but excluding the mere holding or enforcement of such note or the receipt of payments thereunder;
(B) the presentation of such payment or note (in cases in which presentation is required) more than 30 days after the ownership or holding later of the Notes outside date on which the payment of the jurisdiction principal of organization and interest on, such note or incorporation was made or duly provided for; or
(C) the failure of the Guarantor); Holder or beneficial owner (bto the extent it is legally entitled to do so) to comply with a timely request from the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing 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, treaty or administrative practice of the Relevant Taxing 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;
(2) any estate, inheritance, gift, sales, excisesale, transfer, personal property tax or similar taxApplicable Taxes;
(3) any Applicable Taxes to the extent such Applicable Taxes result from the presentation of any note for payment (where presentation is required for payment) and the payment can be made without such withholding or deduction by the presentation of the note for payment by at least one other paying agent;
(4) any Applicable Taxes that are payable otherwise than by withholding from payments under or with respect to the notes;
(5) in respect of any Taxes imposed pursuant to Sections 1471 through 1474 of the Code, assessment as of the Issue Date (or governmental chargeany amended or successor version of such sections) (“FATCA”), any regulations or other official guidance thereunder, any agreement entered into pursuant to section 1471(b)(1) of the Code, any intergovernmental agreement entered into between a non-U.S. jurisdiction and the United States in connection with FATCA or any law, regulation or other official guidance issued or enacted in any jurisdiction implementing FATCA or such intergovernmental agreement;
(6) any United States federal withholding taxes; nor shall such Guarantor be required and
(7) any combination of Applicable Taxes referred to pay Additional Amounts in the preceding clauses (1) if through (6). In addition to the payment could have been made without such deduction foregoing, the Company shall pay and indemnify the Holder or withholding if beneficial owner for any present or future stamp, issue, registration, transfer, court or documentary taxes, or any other excise or property taxes, charges or similar levies or Applicable Taxes levied by any jurisdiction on the beneficiary execution, delivery, registration or enforcement of any of the payment had presented the Notes for payment within 30 days after the date on which such payment notes or such Notes became due and payable any other document or instrument referred to therein, or the date on which payment thereof is duly provided forreceipt of any payments with respect thereto (limited, whichever is later (except solely in the case of Applicable Taxes attributable to the extent receipt of any payments with respect thereto, to any such taxes imposed in a Relevant Taxing Jurisdiction that the Holder would have been entitled to are not exclude under clauses (a) through (c) or (e) through (f) or any combination thereof). Furthermore, Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2) shall not be paid for any Applicable Taxes with respect to any payment of the principal of (or premiumand interest on, such note, if any, on) or interest on such Notes to any the Holder who is a fiduciary or fiduciary, partnership or any person other than the sole beneficial owner of such payment, that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to such the fiduciary, a partner or member of such a that partnership or the a beneficial owner of such payment who would not have been entitled to the such Additional Amounts had such that beneficiary, settlor, partner, member or beneficial owner been the actual Holder thereof. Whenever there is mentioned in any context the payment of principal of and interest on, any note or any other amount payable with respect to such note, such mention shall be deemed to include payment of Additional Amounts provided for in the Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. Each Holder entitled to any Additional Amounts shall cooperate with the Company in providing any information or documentation reasonably requested by the Company to confirm the identity and/or tax status of such NotesHolder and any affected beneficial owner (to the extent necessary to establish such Holder’s entitlement to Additional Amounts) and to assist the Company in determining the applicable withholding tax rate and the amount of Additional Amounts payable in respect thereof. Upon request, the Issuer The Company shall provide furnish to the Trustee with official receipts or an officer’s certificate and any other documentation reasonably satisfactory to the Trustee evidencing the payment of any Applicable Taxes so deducted or withheld and the Taxes with respect to which amount of any Additional Amounts are paidpayable thereon. Copies of such documentation will be made available by the Trustee to Holders upon written request to the Trustee. For the avoidance of doubt, if the Company calls any note for a Tax Redemption as described in Section 3.10 and the redemption date is after a regular record date and on or before the next interest payment date, then the Company’s obligation to pay Additional Amounts will apply to the interest payment due on that note on such interest payment date. The above obligations described under this Section shall will survive any termination, defeasance or discharge of this Indenture the indenture or any transfer by a Holder or beneficial owner of its notes and shall will apply mutatis mutandis to any jurisdiction in which where any successor Person to the Issuer Company is, for tax purposes, organized or resident or doing business or through which payment is organized made or deemed made by, or on behalf of, any successor to the Company (or any political subdivision or taxing authority or agency thereof or therein).
Appears in 1 contract
Sources: Indenture (Herbalife Nutrition Ltd.)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or All payments made by the interpretation or administration thereof to withhold or deduct any amount from any payment made Company under or with respect to its a Note or by a Guarantor under or with respect to a Guarantee 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) (hereinafter hereinafter, “Taxes”) ), unless the Company or such Guarantor is required to withhold or deduct any such Taxes by law or by the interpretation or administration thereof. If the Company or any Guarantor is so required to withhold or deduct any amount for or on account for Taxes imposed or levied by or on behalf of the government of The Netherlands or any other jurisdiction in which the jurisdiction of organization Company or incorporation of such any Guarantor is organized or is a resident for tax purposes or within or through which payment is made or any political subdivision or any taxing authority or agency thereof or therein or thereof having power to tax, or within (any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each of the aforementioned being a “Relevant Taxing Jurisdiction”)) from any payment made under or with respect to a Note or a Guarantee of such Guarantor, the Company or such Guarantor shall Guarantor, as applicable, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders Holder of such Note (including Additional Amounts) after such withholding or deduction shall of such Taxes will not be less than the amount the Holders such Holder would have received if such Taxes had not been required to be withheld or deducted; provided, however, that notwithstanding the foregoing obligation to pay foregoing, Additional Amounts does will not apply to be paid with respect to:
(a1) any Taxes that would not have been so imposed imposed, deducted or withheld but for the existence of any present or former connection between the relevant Holder or beneficial owner of a Note (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over over, the relevant HolderHolder or beneficial owner of such Note, if the relevant Holder or beneficial owner is an estate, nominee, trust trust, partnership or corporation) and the Relevant relevant Taxing Jurisdiction, including, without limitation, the Holder or beneficial owner being, or having been, a citizen, national, or resident, being, or having been, engaged in a trade or business, being, or having been, physically present in or having had a permanent establishment in the relevant Taxing Jurisdiction (other than but not including the mere receipt of such payment or the ownership or holding of or the Notes outside execution, delivery, registration or enforcement of such Note);
(2) subject to the jurisdiction last paragraph of organization or incorporation of the Guarantor); or (b) this section, any estate, inheritance, gift, sales, excise, transfer, transfer or personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts ;
(13) if the payment could have been made without such any Taxes payable otherwise than by deduction or withholding from payments under or with respect to such Note or a Guarantee;
(4) any Taxes that would not have been so imposed, deducted or withheld if the Holder or beneficial owner of the Note or beneficial owner of any payment on such Note had (i) made a declaration of non-residence, or any other claim or filing for exemption, to which it is entitled or (ii) complied with any certification, identification, information, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder or beneficial owner of such Note or any payment on such Note (provided that (x) such declaration of non-residence or other claim or filing for exemption or such compliance is required by the applicable law of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of the imposition, deduction or withholding of, such Taxes and (y) at least 60 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption or such compliance is required under the applicable law of the Taxing Jurisdiction, the relevant Holder at that time has been notified by the Company, any Guarantor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption or such compliance is required to be made);
(5) any Taxes that would not have been so imposed, deducted or withheld if the beneficiary of the payment had presented the Notes Note for payment within 30 days after the date on which such payment or such Notes 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 Notes Note been presented on the last day of such 30-day period), ;
(6) any payment under or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes a Note to any Holder who Person that is a fiduciary fiduciary, limited liability company or partnership or any person other than the sole beneficial owner of such paymentpayment or Note, 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 or Note would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such NotesNote;
(7) any Taxes that are required to be deducted or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), and any amended or successor version that is substantively comparable and not materially more onerous to comply with, any current or future regulations or agreements thereunder, official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, or any law or regulation implementing an intergovernmental agreement relating to the foregoing;
(8) any Taxes imposed or withheld pursuant to the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021); or
(9) any combination of items (1) through (8) above. Upon The foregoing provisions shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor Person to the Company or a Guarantor. The Company or the applicable Guarantor will also make any applicable withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company or the applicable Guarantor will furnish to the Trustee, within 30 days after the date the payment of any Taxes deducted or withheld is due pursuant to applicable law, certified copies of tax receipts or, if such tax receipts are not reasonably available to the Company or such Guarantor, such other documentation that provides reasonable evidence of such payment by the Company or such Guarantor. Copies of such receipts or other documentation will be made available to the Holders or the Paying Agent, as applicable, upon request. At least 15 days prior to each date on which any payment under or with respect to any Notes is due and payable, unless such obligation to pay Additional Amounts arises after the 15th day prior to such date, in which case it shall be promptly delivered thereafter, if the Company or any Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer shall Company or such Guarantor will deliver to the Trustee and the Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts estimated to be so payable and will set forth such other information necessary to enable such Paying Agent to pay such Additional Amounts to Holders of such Notes on the relevant payment date. If requested by the Trustee, the Company or the relevant Guarantor will provide the Trustee with official receipts or other documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. Each Officers’ Certificate shall be relied upon until receipt of a further Officers’ Certificate addressing such matters. The Trustee shall be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary. Whenever in this Note or the Taxes Indenture there is mentioned, in any context, the payment of principal, premium, if any, interest or of any other amount payable under or with respect to which any Note, such mention shall be deemed to include mention of the payment of Additional Amounts are paidto the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The obligations described under this Section shall survive Company and the Guarantors will pay any terminationpresent or future stamp, defeasance court or discharge 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 this the Notes, the Indenture and shall apply mutatis mutandis to or any other document or instrument in relation thereto, excluding all such taxes, charges or similar levies imposed by any jurisdiction outside any jurisdiction in which the Company or any Guarantor or any successor Person to the Issuer is organized or resident for tax purposes or any political subdivision jurisdiction in which a Paying Agent is located, other than those resulting from, or taxing authority required to be paid in connection with, the enforcement of the Notes, the Guarantees or agency thereof any other such document or thereininstrument following the occurrence of any Event of Default with respect to the Notes. The Company and the Guarantors agree to indemnify the Holders of the Notes for any such non-excluded taxes paid by such Holders.
Appears in 1 contract
Sources: Indenture (O-I Glass, Inc. /DE/)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary All payments made by or is a Puerto Rican corporation is required by applicable law on behalf of the Issuer or by any of the interpretation or administration thereof to withhold or deduct any amount from any payment made Guarantors under or with respect to its the Notes or any Note Guarantee for will be made free and clear of and without withholding or deduction for, or on account of of, any present or future taxTaxes unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, dutyor on account of, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) any Taxes imposed or levied by or on behalf of (1) any jurisdiction in which the government of the jurisdiction of organization Issuer or incorporation of such any Guarantor (including any successor entity), is then incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which payment is made by or on behalf of the Issuer or any authority Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or agency any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”), will at any time be required to be made from any payments under or thereof having power with respect to taxthe Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium the Issuer or the relevant Guarantor, as applicable, will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each holder or Beneficial Owner of Notes after such withholding, deduction or imposition will equal the respective amounts of cash that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts will be payable with respect to:
(a) any Taxes, to the extent such Taxes would not have been imposed but for the Holder or the Beneficial Owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or within possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being a citizen or resident or national of, incorporated in the relevant Tax Jurisdiction in which such Taxes are imposed or having any other present or former connection with the relevant Tax Jurisdiction other than the acquisition or holding of such Notes, the exercise or enforcement of rights under such Note or this Indenture or under a Note Guarantee of a Guarantor or the receipt of payments in respect of such Note or a Note Guarantee of a Guarantor;
(b) 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 for payment to the holder (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);
(c) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(d) any Taxes withheld, deducted or imposed on a payment to an individual and that are 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 November 26 and 27, 2000 on the taxation of savings income, or any law implementing or complying with or introduced in order to conform to, such directive;
(e) any Note presented for payment (where presentation is required) by or on behalf of a Holder of Notes 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;
(f) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or with respect to any Note Guarantee of a Guarantor;
(g) 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 reasonable written request addressed to the Holder or Beneficial Owner at least 60 days before any such withholding or deduction would be payable to the holder or Beneficial Owner, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, 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), but in each case, only to the extent the Holder or Beneficial Owner is legally entitled to provide such certification or documentation;
(h) any Taxes imposed or withheld by reason of the failure of the holder or Beneficial Owner of the Notes to comply with the requirements of Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “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 U.S. Treasury Regulations issued thereunder or any official interpretation thereof or any agreement entered into pursuant to Section 1471(b) of the Code;
(i) any withholding Tax imposed by the United States or a political subdivision thereof; or
(j) any combination of clauses (a) through (i) above. In addition to the foregoing, the Issuer and any Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or 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 jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, this Indenture, any Note Guarantee of a Guarantor or any other document referred to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Notes or any Note Guarantee of a Guarantor. If the Issuer or any Guarantor, as the case may be, becomes aware that it or they will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or any Note Guarantee of a Guarantor, the Issuer or the relevant Guarantor, as the case may be, will deliver to the Trustee on a date that is at least 30 days prior to the date of that payment (unless 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 Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officers’ Certificates must also set forth any other information reasonably necessary to enable the Paying Agents to pay Additional Amounts to Holders on the relevant payment date. The Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officers’ Certificate as conclusive proof that such payments are necessary, and may conclusively presume that no payments are necessary unless and until it receives any such Officers’ Certificate. The Issuer or the relevant Guarantor will make all withholdings and deductions (within the time period and in the minimum amount) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer or the relevant Guarantor will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor will furnish to the Trustee (or to a holder upon request), within 60 days after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Issuer or a Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity. Whenever in this Indenture or the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee of a Guarantor, 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. The above obligations will survive any termination, defeasance or discharge of this Indenture, any transfer by a holder or Beneficial Owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which such any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”), such Guarantor shall pay such additional amounts (“Additional Amounts”) as may be necessary so that on the net amount received by the Holders (including Additional Amounts) after such withholding or deduction shall not be less than the amount the Holders would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to (a) any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant Holder Notes (or between any Note Guarantee of 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 corporationGuarantor) and the Relevant Taxing Jurisdiction (other than the mere receipt of such payment any department or the ownership or holding of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if 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 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 that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder 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 of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Endo International PLC)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary All payments made by or is a Puerto Rican corporation is required by applicable law on behalf of the Issuers or by any of the interpretation or administration thereof to withhold or deduct any amount from any payment made Guarantors under or with respect to its the Notes or any Note Guarantee for will be made free and clear of and without withholding or deduction for, or on account of of, any present or future taxTaxes unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, dutyor on account of, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) any Taxes imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or (1) any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such the Issuers or any Guarantor (including any successor entity), is then incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which payment under its Guarantee is made by or on behalf of the Issuers or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Relevant Taxing Tax Jurisdiction”), such Guarantor shall will at any time be required to be made from any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuers or the relevant Guarantor, as applicable, will pay such additional amounts (the “Additional Amounts”) as may be necessary so in order that the net amount amounts received and retained in respect of such payments by each Holder or beneficial owner of Notes after such withholding, deduction or imposition will equal the Holders (including Additional Amounts) after respective amounts of cash that would have been received and retained in respect of such payments in the absence of such withholding or deduction shall not be less than the amount the Holders would have received if such Taxes had not been withheld or deducteddeduction; provided, however, that the foregoing obligation to pay no Additional Amounts does not apply to will be payable with respect to:
(a) any Taxes, to the extent such Taxes that would not have been so imposed but for the existence Holder or the beneficial owner of any present or former connection between the relevant Holder Notes (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over over, the relevant Holder, if the relevant Holder is an estate, trust, nominee, trust partnership, limited liability company or corporation) and being a citizen or resident or national of, incorporated in the Relevant Taxing relevant Tax Jurisdiction (in which such Taxes are imposed or having any other present or former connection with the relevant Tax Jurisdiction other than the mere receipt of such payment or the ownership acquisition or holding of such Notes, the exercise or enforcement of rights under such Notes outside or this Indenture or under a Note Guarantee of a Guarantor or the jurisdiction receipt of organization payments in respect of such Notes or incorporation a Note Guarantee of the a Guarantor); or ;
(b) any estateTaxes, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall to the extent such Guarantor be required to pay Additional Amounts (1) if the payment could have been made without such deduction or withholding if the beneficiary Taxes were imposed as a result of the payment had presented the Notes presentation of a Note for payment within (where presentation is required) more than 30 days after the date on which such relevant payment or such Notes became due and payable or is first made available for payment to the date on which payment thereof is duly provided for, whichever is later Holder (except to the extent that the Holder or beneficial owner would have been entitled to Additional Amounts had the Notes Note been presented on the last day of such 30-30 day period);
(c) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(d) any Taxes withheld, deducted or imposed on a payment to an individual and that are 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 November 26 and 27, 2000 on the taxation of savings income, or any law implementing or complying with or introduced in order to conform to, such directive;
(2e) any Note presented for payment (where presentation is required) by or on behalf of a Holder of Notes 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;
(f) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or with respect to any Note Guarantee of a Guarantor;
(g) 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 Issuers’ reasonable written request addressed to the Holder or beneficial owner at least 60 days before any such withholding or deduction would be payable to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, 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), but in each case, only to the extent the Holder or beneficial owner is legally entitled to provide such certification or documentation;
(h) any Taxes imposed or withheld by reason of the failure of the Holder or beneficial owner of the Notes to comply with the requirements of Sections 1471 through 1474 of the 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 U.S. Treasury Regulations issued thereunder or any official interpretation thereof or any agreement entered into pursuant to Section 1471(b) of the Code;
(i) any withholding Tax imposed by the United States or a political subdivision thereof; or
(j) any combination of clauses (a) through (i) above. In addition to the foregoing, the Issuers and any Guarantors will also pay and indemnify the Holders for any present or future stamp, issue, registration, value added, transfer, court or 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 jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, this Indenture, any Note Guarantee of a Guarantor or any other document referred to herein or therein, or the receipt of any payments with respect thereto, or enforcement of any of the Notes or any Note Guarantee of a Guarantor. If the Issuers or any Guarantor, as the case may be, becomes aware that it or they will be obligated to pay Additional Amounts with respect to any payment of principal of (under or premium, if any, on) or interest on such Notes to any Holder 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 fiduciarythe Notes or any Note Guarantee of a Guarantor, a member of such a partnership the Issuers or the beneficial owner of such payment would not have been entitled relevant Guarantor, as the case may be, will deliver to the Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts had such beneficiaryarises after the 30th day prior to that payment date, settlor, member in which case the Issuers or beneficial owner been the actual Holder of such Notesrelevant Guarantor shall notify the Trustee promptly thereafter) an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. Upon request, The Officers’ Certificate must also set forth any other information reasonably necessary to enable the Issuer shall Paying Agents to pay Additional Amounts to Holders on the relevant payment date. The Issuers or the relevant Guarantor will provide the Trustee with official receipts or other documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officers’ Certificate as conclusive proof that such payments are necessary, and may conclusively presume that no payments are necessary unless and until it receives any such Officers’ Certificate. The Issuers or the relevant Guarantor will make all withholdings and deductions (within the time period and in the minimum amount) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuers or the relevant Guarantor will use their reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuers or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), within 60 days after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Issuers or a Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity. Whenever in this Indenture or the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee of a Guarantor, such mention shall be deemed to which include mention of the payment of Additional Amounts are paidto the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The above obligations described under this Section shall will survive any termination, defeasance or discharge of this Indenture Indenture, any transfer by a Holder or beneficial owner of its Notes, and shall apply will apply, mutatis mutandis mutandis, to any jurisdiction in which any successor Person to the Issuer is organized Issuers or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes (or any Note Guarantee of a Guarantor) and any department or political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Endo International PLC)
Additional Amounts. If a Guarantor (a) All payments that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made Issuer makes under or with respect to its Guarantee the 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 (hereinafter collectively, “Taxes”) imposed or levied on such payments by or on behalf of any jurisdiction (other than the government United States, any state thereof or the District of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction Columbia) in which such Guarantor the Issuer is organized, resident or doing business for tax purposes or any jurisdiction from or through which it (or its agents, including the Paying Agent) makes any payment under its Guarantee is made on the Notes or by or within any department, political subdivision or governmental authority of or in any of the foregoing having power to tax (each each, a “Relevant Taxing Jurisdiction”), such Guarantor unless the Issuer 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 of law. If the Issuer or other applicable withholding agent is 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, the Issuer shall pay such additional amounts (“Additional Amounts”) as may be necessary so to ensure that the net amount received by each beneficial owner of the Holders (including Additional Amounts) Notes after such withholding or deduction shall (including any withholding or deduction in respect of any Additional Amounts) will not be less than the amount the Holders beneficial owner would have received if such Taxes had not been withheld or deducted; provided.
(b) The Issuer shall not, however, that the foregoing obligation to pay Additional Amounts does not apply to in respect or on account of:
(ai) any Taxes, to the extent such Taxes that would not have been so are imposed but for or levied by a Relevant Taxing Jurisdiction by reason of the existence of any Holder’s or beneficial owner’s 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 with such Relevant Taxing Jurisdiction (other than the mere receipt, ownership, holding or disposition of the Notes, or by reason of the receipt of such payment any payments in respect of any Notes, or the ownership exercise or holding enforcement of rights under any Notes);
(ii) any Taxes to the extent such Taxes are imposed or withheld by reason of the Notes outside failure of the jurisdiction of organization Holder or incorporation beneficial owner of the GuarantorNotes, following the Issuer’s 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 is legally eligible to 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 rate of deduction or withholding of, such Taxes imposed by the Relevant Taxing Jurisdiction (bincluding, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(iii) any estate, inheritance, gift, sales, excisetransfer, transfercapital gains, wealth, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts Taxes;
(1iv) if the payment could have been made without such any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes;
(v) any Tax imposed on or with respect to any payment by the Issuer to the Holder if such Holder is a fiduciary or partnership or Person other than the beneficiary sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payment had such beneficial owner been the holder of such Note;
(vi) 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 presenting the relevant Notes to another paying agent in a member state of the payment had presented European Union;
(vii) any Taxes, to the Notes extent such Taxes were imposed as a result of the presentation of a Note for payment within (where presentation is required) more than 30 days after the date on which such relevant payment or such Notes became due and payable or is first made available to the date on which payment thereof is duly provided for, whichever is later Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Notes 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 other Directive implementing the conclusions of the ECOFIN Council meetings of November 26 and 27, 2000 on the taxation of savings income or 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 any amended or successor version that is 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 1471(b)(1) of the Internal Revenue Code of 1986 as of the Issue Date (or any amended or successor version described above), and including (for the avoidance of doubt) any intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the foregoing; or
(x) any combination of the foregoing.
(c) If the Issuer is the applicable withholding agent, the Issuer shall (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority 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 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 will be promptly thereafter), the Issuer shall deliver to the Trustee, with a copy to the Paying Agent, an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuer 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. Such Additional Amounts may be paid by the Issuer, at its option, in the form of cash or Additional Notes. To the extent that the Issuer or any applicable withholding agent is required by law or by the interpretation or administration thereof to make any deduction or withholding from any payment of interest on the Notes or any payment of an Additional Amount which, in either case, is made through the issuance of Additional Notes, the foregoing provisions shall apply with respect to such withholding or deduction requirement, mutatis mutandis. In addition, the Issuer 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 other document or instrument referred to thereunder, or (2ii) the receipt of any payments under or with respect to, or enforcement of, the Notes. Upon written request, the Issuer will furnish to the Trustee or the Principal Paying Agent or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by the Issuer of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02, in such form as provided in the normal course by the taxing authority imposing such Taxes. If, notwithstanding the efforts of the Issuer to obtain such receipts, the same are not obtainable, the Issuer will provide the Trustee or such Holder with other evidence reasonably satisfactory to the Trustee or holder of such payments by the Issuer. If requested by the Trustee or the Principal Paying Agent, the Issuer will provide to the Trustee or the Principal Paying Agent, as the case may be, such information as may be reasonably available to the Issuer (and not otherwise in the possession of the Trustee or the Principal Paying Agent, as applicable) 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 of (or principal, premium, if any, on) or interest on such Notes to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, to the extent that a beneficiary amount payable under or settlor with respect to any Note, 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 of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing reference includes the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Amounts, if applicable.
(f) This Section shall 4.12 will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to any of the Issuer is organized organized, resident or doing business for tax purposes or any jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on the Notes and any department, political subdivision or taxing governmental authority of or agency thereof or thereinin any of the foregoing having the power to tax.
Appears in 1 contract
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or (1) All payments by the interpretation Issuer or administration thereof to withhold the Guarantor in respect of the Notes and the Guaranty will be made without withholding or deduct any amount from any payment made under or with respect to its Guarantee deduction for or on account of any present or future taxtaxes, dutyduties, levyassessments, impost, assessment fees or other governmental charge charges of whatever nature (including penaltiesand any fines, penalties or interest and other liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or on behalf of the government Cayman Islands, Brazil or, following any merger, consolidation, transfer, liquidation, winding-up, dissolution or assumption of obligations in accordance with Sections 5(g) and 5(l) hereof, the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor the resulting, surviving or transferee Person is incorporated, resident for tax purposes or treated as engaged in business, or, in each case, any jurisdiction from political subdivision thereof or through which payment under its Guarantee is made taxing authority therein (each each, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law. In that event, the Issuer or the Guarantor shall will pay to each holder such additional amounts (“Additional Amounts”) as may be necessary so in order that the every net amount received payment made by the Holders (including Additional Amounts) Issuer or the Guarantor on each Note after deduction or withholding for or on account of any present or future tax, penalty, fine, duty, assessment or other governmental charge imposed upon or as a result of such withholding or deduction shall payment by the Taxing Jurisdiction will not be less than the amount the Holders would have received if then due and payable on such Taxes had not been withheld or deducted; provided, however, that the Note. The foregoing obligation to pay Additional Amounts does Amounts, however, will not apply to to:
(aA) any Taxes that tax, assessment or other governmental charge which would not have been so imposed but for the existence of any present or former connection between the relevant such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over the relevant such Holder, if the relevant such Holder is an estate, nomineea trust, trust a partnership or a corporation) or beneficial owner, on the one hand, and the Relevant Taxing Jurisdiction Jurisdiction, on the other hand, including, without limitation, such Holder (other than or such fiduciary, settlor, beneficiary, member or shareholder) or beneficial owner being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein, but not including the mere receipt of such payment or the ownership or holding of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or such Note;
(bB) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or other governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if the payment could charge which would not have been made without so imposed but for the presentation by such deduction or withholding if the beneficiary of the payment had presented the Notes Holder for payment within (where presentation is required) on a date more than 30 days after the date on which such payment or such Notes became due and payable or the date on which payment thereof is duly provided for, whichever is later occurs later;
(except to C) the extent that the taxes, duties, assessments or other governmental charges would not have been imposed but for the failure of such Holder or beneficial owner to comply with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of the Holder if (a) such compliance is required or imposed by statute, regulation or other applicable law of such Taxing Jurisdiction as a precondition to exemption from all or a part of such tax, assessment or other governmental charge and (b) at least 30 days prior to the date on which the Issuer or the Guarantor applies this clause (C) the Issuer or the Guarantor will have notified all Holders of Notes that some or all Holders of Notes shall be required to comply with such requirement;
(D) a tax, assessment or other governmental charge imposed on a payment to an individual and required to be made pursuant to the European Union Directive on the taxation of savings, which was adopted on June 3, 2003, or any law implementing or complying with, or introduced in order to conform to, that directive;
(E) any tax, assessment or governmental charge imposed on a Note presented for payment by or on behalf of a Holder who would have been entitled able to Additional Amounts had avoid that withholding or deduction by presenting the Notes been presented relevant Note to another Paying Agent in a member state of the European Union;
(F) any estate, inheritance, gift, sales, transfer or personal property tax or similar tax;
(G) any tax, assessment or governmental charge payable other than by deduction or withholding from payments of principal or of interest on the last day Note; or
(H) any combination of such 30-day period), or items (A) through (G) above.
(2) The Issuer or the Guarantor shall also pay any present or future stamp, court or documentary taxes or any other excise taxes, charges or similar levies which arise in any jurisdiction from the execution, delivery, registration or the making of payments in respect of the Notes, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside of any Taxing Jurisdiction other than those resulting from, or required to be paid in connection with, the enforcement of the Notes following the occurrence of any Default or Event of Default (each as defined below).
(3) No Additional Amounts shall be paid with respect to any a payment of principal of (on a Note or premium, if any, on) or interest on such Notes under the Guaranty to any a Holder who that is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, payment to the extent that a beneficiary or settlor with respect to such fiduciary, fiduciary or a member of such a partnership or the beneficial owner of such payment would not have been entitled to receive payment of the Additional Amounts had such the beneficiary, settlor, member or beneficial owner been the actual Holder of such Notes. Upon request, the Note.
(4) The Issuer shall or the Guarantor will provide the Trustee with the official receipts or other documentation satisfactory to acknowledgment of the Trustee relevant taxing authority (or, if such acknowledgment is not available, a certified copy thereof, if available) evidencing the payment of taxes in any Taxing Jurisdiction in respect of which the Taxes Issuer or the Guarantor has paid any Additional Amounts. Copies of such documentation will be made available to the Holders of the Notes or the Paying Agents, as applicable, upon request therefor.
(5) The Issuer or the Guarantor will:
(A) at least 10 Business Days prior to the first Interest Payment Date for any Notes (and at least 10 Business Days prior to each succeeding Interest Payment Date or any Optional Redemption Date or Stated Maturity Date if there has been any change with respect to which the matters set forth in the below-mentioned officer's certificate), deliver to the Trustee and each Paying Agent an officer's certificate (i) specifying the amount, if any, of taxes described in this Section 5(d) imposed or levied by or on behalf of any Taxing Jurisdiction (the “Relevant Withholding Taxes”) required to be deducted or withheld on the payment of principal or interest on the Notes to Holders and the Additional Amounts, if any, due to Holders in connection with such payment, and (ii) certifying that the Issuer or the Guarantor will pay such deduction or withholding;
(B) prior to the due date for the payment thereof, pay any such Relevant Withholding Taxes, together with any penalties or interest applicable thereto;
(C) within 30 days after paying such Relevant Withholding Taxes, deliver to the Trustee and the Principal Paying Agent evidence of such payment and of the remittance thereof to the relevant taxing or other authority as described in this Section 5(d); and
(D) pay any Additional Amounts are paid. The obligations described under due to Holders on any Interest Payment Date, Optional Redemption Date or Stated Maturity Date to the Trustee in accordance with the provisions of this Section 5(d).
(6) All references in this offering memorandum to principal of and interest hereon shall survive include any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to Additional Amounts payable by the Issuer is organized or any political subdivision or taxing authority or agency thereof or thereinthe Guarantor in respect of such principal and such interest.
Appears in 1 contract
Sources: Indenture
Additional Amounts. If (a) All payments made by or on behalf of an Issuer or any Guarantor (each a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made “Payor”) under or with respect to its the Notes or any Note Guarantee 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 similar liabilities related thereto) (hereinafter collectively, “Taxes”) imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor Payor is organized, resident or doing business for tax purposes or any jurisdiction from or through which such Payor (or its agents) makes any payment under its on the Notes or any Note Guarantee is made or any department or political subdivision thereof (each each, a “Relevant Taxing Jurisdiction”), unless such Guarantor shall Payor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If a 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 or any Note Guarantee, such Payor, subject to the exceptions stated below, will pay such additional amounts (“Additional Amounts”) as may be necessary so such that the net amount received in respect of such payment by the Holders (including Additional Amounts) each holder after such withholding or deduction shall (including withholding or deduction attributable to Additional Amounts payable hereunder) will not be less than the amount the Holders holder would have received if such Taxes had not been required to be so withheld or deducted; provided.
(b) A Payor will not, however, that the foregoing obligation to pay Additional Amounts to a holder or beneficial owner of Notes:
(i) with which the Payor does not apply deal at arm’s length (for the purpose of the Income Tax Act (Canada)) at the time of making such payment,
(ii) to (a) any the extent the Taxes that giving rise to such Additional Amounts would not have been so imposed but for the existence of any present or former connection between the relevant a Holder (or between the beneficial owner of, or person ultimately entitled to obtain an interest in , such Notes, including a fiduciary, settlorsettler, beneficiary, member member, partner, shareholder or shareholder ofother equity interest owner of , or possessor of power over the relevant Holderover, such holder or beneficial owner, if the relevant Holder such holder or beneficial owner is an estate, nomineetrust, trust partnership, limited liability company, corporation or corporationother entity) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, the Relevant Taxing Jurisdiction other than any connection resulting solely from the mere acquisition, ownership, or disposition of Notes, the receipt of payments thereunder and/or the exercise or enforcement of rights under any Notes or any Note Guarantee);
(iii) to the extent the Taxes giving rise to such payment or Additional Amounts would not have been imposed but for the ownership or holding failure of the Notes outside holder or beneficial owner of Notes, to the jurisdiction extent such holder or beneficial owner is legally eligible to do so, to satisfy any certification, identification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction or arm’s length-relationship with the Payor and the holder or beneficial owner or otherwise establishing the right to the benefit of organization an exemption from, or incorporation reduction in the rate of, withholding or deduction, if (a) such compliance is required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the Guarantor); rate of deduction or withholding of, such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction) and (b) the Payor has provided the Trustee with 30 days’ prior written notice of such requirement;
(iv) with respect to any estate, inheritance, gift, sales, excise, transfer, personal property tax sales or any similar tax, assessment Taxes;
(v) if such holder is a fiduciary or governmental charge; nor shall partnership or person other than the sole beneficial owner of such Guarantor be required payment and the Taxes giving rise to pay such Additional Amounts (1) if the payment could would not have been made without imposed on such deduction or withholding if the beneficiary of the payment had presented the Notes holder been the beneficiary, partner or sole beneficial owner, as the case may be, of such Note;
(vi) 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 within on a date more than 30 days after the date on which such payment or such Notes became due and payable or the date on which payment thereof is duly provided for, whichever is later occurs later;
(except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2vii) with respect to any payment Tax imposed or levied by, or on behalf of, the United States of principal America or any State thereof or the District of Columbia (or premiumany political subdivision of any of the foregoing);
(viii) with respect to any Taxes imposed on a payment to an individual and required to be made pursuant to the European Union Directive on the taxation of savings income which was adopted by the ECOFIN Council (the Council of the EU Finance and Economic Ministers), or any law implementing or complying with, or introduced to conform to, such directive, or pursuant to related measures entered into on a reciprocal basis between member states of the European Union and certain non-European countries and dependent or associated territories;
(ix) with respect to any Tax which is payable otherwise than by withholding from payments on or in respect of the Notes or any Note Guarantee; or
(x) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii), (viii) and (ix) of this Section 4.19(b).
(c) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or any Note Guarantee is due and payable, if any, on) or interest on such Notes a Payor will be obligated to any Holder 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 pay Additional Amounts with respect to such fiduciary, a member of payment (unless such a partnership or obligation to pay Additional Amounts arises after the beneficial owner of 35th day prior to the date on which such payment is due and payable, in which case it will be promptly thereafter), the Payor will deliver to the Trustee 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 to pay such Additional Amounts to holders on the payment date. The Payor will promptly publish a notice in accordance with the provisions set forth in Section 13.01 hereof stating that such Additional Amounts will be payable and describing the obligation to pay such amounts.
(d) The Payors, jointly and severally, will indemnify and hold harmless the holders of Notes, 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 under any Note Guarantee; 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 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 or reimbursement obligations provided for in this Section 4.19(d) shall not extend to Taxes for which the holder of the Notes would not have been entitled eligible to receive payment of Additional Amounts hereunder by virtue of clauses (b)(i) through (b)(x) above or to the extent such holder received Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. 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 Notes, any Note Guarantee or any other document or instrument referred to thereunder and any such taxes, charges or duties imposed by any Relevant Taxing Jurisdiction as a result of, or in connection with, any payments made pursuant to the Notes or any Note Guarantee and/or the enforcement of the Notes or any Note Guarantee and/or any other such document or instrument.
(f) The obligations described under in this Section shall 4.19 will survive any termination, defeasance or discharge of this the Indenture and shall will apply mutatis mutandis to any successor Person to any Payor and to any jurisdiction in which any such successor Person to the Issuer is organized or is otherwise resident or doing business for tax purposes or any political subdivision jurisdiction from or taxing authority through which payment is made by such successor or agency thereof its respective agents. Whenever this Indenture refers to, in any context, the payment of principal, premium, if any, interest or thereinany other amount payable under or with respect to any Note, such reference shall include the payment of Additional Amounts or indemnification payments as described hereunder, if applicable.
Appears in 1 contract
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or All payments made by the interpretation or administration thereof to withhold or deduct any amount from any payment made Company under or with respect to its a Note or by a Guarantor under or with respect to a Guarantee 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) (hereinafter hereinafter, “Taxes”) ), unless the Company or such Guarantor is required to withhold or deduct any such Taxes by law or by the interpretation or administration thereof. If the Company or any Guarantor is so required to withhold or deduct any amount for or on account for Taxes imposed or levied by or on behalf of the government of The Netherlands or any other jurisdiction in which the jurisdiction of organization Company or incorporation of such any Guarantor is organized or is a resident for tax purposes or within or through which payment is made or any political subdivision or any taxing authority or agency thereof or therein or thereof having power to tax, or within (any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each of the aforementioned being a “Relevant Taxing Jurisdiction”)) from any payment made under or with respect to a Note or a Guarantee of such Guarantor, the Company or such Guarantor shall Guarantor, as applicable, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders Holder of such Note (including Additional Amounts) after such withholding or deduction shall of such Taxes will not be less than the amount the Holders such Holder would have received if such Taxes had not been required to be withheld or deducted; provided, however, that notwithstanding the foregoing obligation to pay foregoing, Additional Amounts does will not apply to be paid with respect to:
(a1) any Taxes that would not have been so imposed imposed, deducted or withheld but for the existence of any present or former connection between the relevant Holder or beneficial owner of a Note (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over over, the relevant HolderHolder or beneficial owner of such Note, if the relevant Holder or beneficial owner is an estate, nominee, trust trust, partnership or corporation) and the Relevant relevant Taxing Jurisdiction, including, without limitation, the Holder or beneficial owner being, or having been, a citizen, national, or resident, being, or having been, engaged in a trade or business, being, or having been, physically present in or having had a permanent establishment in the relevant Taxing Jurisdiction (other than but not including the mere receipt of such payment or the ownership or holding of or the Notes outside execution, delivery, registration or enforcement of such Note);
(2) subject to the jurisdiction last paragraph of organization or incorporation of the Guarantor); or (b) this Section 3.07, any estate, inheritance, gift, sales, excise, transfer, transfer or personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts ;
(13) if the payment could have been made without such any Taxes payable otherwise than by deduction or withholding from payments under or with respect to such Note or Guarantee;
(4) any Taxes that would not have been so imposed, deducted or withheld if the Holder or beneficial owner of the Note or beneficial owner of any payment on such Note had (i) made a declaration of non-residence, or any other claim or filing for exemption, to which it is entitled or (ii) complied with any certification, identification, information, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder or beneficial owner of such Note or any payment on such Note (provided that (x) such declaration of non-residence or other claim or filing for exemption or such compliance is required by the applicable law of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of the imposition, deduction or withholding of, such Taxes and (y) at least 60 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption or such compliance is required under the applicable law of the Taxing Jurisdiction, the relevant Holder at that time has been notified by the Company, any Guarantor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption or such compliance is required to be made);
(5) any Taxes that would not have been so imposed, deducted or withheld if the beneficiary of the payment had presented the Notes Note for payment within 30 days after the date on which such payment or such Notes 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 Notes Note been presented on the last day of such 30-day period), ;
(6) any payment under or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes a Note to any Holder who Person that is a fiduciary fiduciary, limited liability company or partnership or any person other than the sole beneficial owner of such paymentpayment or Note, 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 or Note would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such NotesNote;
(7) any Taxes that are required to be deducted or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), and any amended or successor version that is substantively comparable and not materially more onerous to comply with, any current or future regulations or agreements thereunder, official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, or any law or regulation implementing an intergovernmental agreement relating to the foregoing; or
(8) any combination of items (1) through (7) above. Upon The foregoing provisions shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor Person to the Company or a Guarantor. The Company or the applicable Guarantor will also make any applicable withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company or the applicable Guarantor will furnish to the Trustee, within 30 days after the date the payment of any Taxes deducted or withheld is due pursuant to applicable law, certified copies of tax receipts or, if such tax receipts are not reasonably available to the Company or such Guarantor, such other documentation that provides reasonable evidence of such payment by the Company or such Guarantor. Copies of such receipts or other documentation will be made available to the Holders or the Paying Agent, as applicable, upon request. At least 15 days prior to each date on which any payment under or with respect to any Notes is due and payable, unless such obligation to pay Additional Amounts arises after the 15th day prior to such date, in which case it shall be promptly delivered thereafter, if the Company or any Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer shall Company or such Guarantor will deliver to the Trustee and the Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts estimated to be so payable and will set forth such other information necessary to enable such Paying Agent to pay such Additional Amounts to Holders of such Notes on the relevant payment date. If requested by the Trustee, the Company or the relevant Guarantor will provide the Trustee with official receipts or other documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. Each Officers’ Certificate shall be relied upon until receipt of a further Officers’ Certificate addressing such matters. The Trustee and the Taxes Paying Agent shall be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary. Whenever in this Indenture there is mentioned, in any context, the payment of Principal, premium, if any, interest or of any other amount payable under or with respect to which any Note, such mention shall be deemed to include mention of the payment of Additional Amounts are paidto the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The obligations described under this Section shall survive Company and the Guarantors will pay any terminationpresent or future stamp, defeasance court or discharge 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 the Notes, this Indenture and shall apply mutatis mutandis to or any other document or instrument in relation thereto, excluding all such taxes, charges or similar levies imposed by any jurisdiction outside any jurisdiction in which the Company or any Guarantor or any successor Person to the Issuer is organized or resident for tax purposes or any political subdivision jurisdiction in which a Paying Agent is located, other than those resulting from, or taxing authority required to be paid in connection with, the enforcement of the Notes, the Guarantees or agency thereof any other such document or thereininstrument following the occurrence of any Event of Default with respect to the Notes. The Company and the Guarantors agree to indemnify the Holders of the Notes for any such non-excluded taxes paid by such Holders.
Appears in 1 contract
Sources: Indenture (Owens-Illinois Group Inc)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary (a) All payments made by or is a Puerto Rican corporation is required by applicable law or by on behalf of the interpretation or administration thereof to withhold or deduct any amount from any payment made Issuer under or with respect to its Guarantee a Note, or a Guarantor under or with respect to a Note 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 hereinafter, “Taxes”) ), unless any such Taxes are required to be withheld or deducted under applicable law. If any Taxes imposed or levied by or on behalf of the government of Italy or any other jurisdiction in which the Issuer or any Guarantor is organized or is a resident or does business for tax purposes or within or through which payment is made by or on behalf of the Issuer or any Guarantor (including the jurisdiction of organization or incorporation of such Guarantor any Paying Agent) or any political subdivision or any taxing authority or agency thereof or therein or thereof having power to tax, or within (any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each of the aforementioned being a “Relevant Taxing Jurisdiction”)) will at any time be required to be withheld or deducted by any applicable withholding agent from any payment made under or with respect to a Note or a Note Guarantee, or if a beneficial owner actually pays any such Taxes where the Issuer, Guarantor or any other applicable withholding agent has failed to withhold or deduct Taxes required to be withheld or deducted from any payment made under or with respect to a Note or a Note Guarantee, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders (including Additional Amounts) each beneficial owner of such Note after such withholding or deduction shall by the applicable withholding agent of such Taxes (including any such deduction or withholding of any Taxes in respect of such Additional Amounts) will not be less than the amount the Holders such beneficial owner would have received if such Taxes had not been required to be withheld or deducted; provided, however, that notwithstanding the foregoing obligation to pay foregoing, Additional Amounts does will not apply be paid:
(1) to (a) any the extent the Taxes that giving rise to such Additional Amounts would not have been so imposed imposed, deducted or withheld but for the existence of any present or former connection between the relevant Holder or beneficial owner of a Note (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over over, the relevant HolderHolder or beneficial owner of such Note, if the relevant Holder or beneficial owner is an estate, nominee, trust trust, partnership or corporation) and the Relevant relevant Taxing Jurisdiction (other than the mere receipt of such payment or the ownership acquisition, ownership, holding or holding disposition of, or the execution, delivery, registration or enforcement of, such Note or Note Guarantee);
(2) subject to subsection (e) of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or (b) this Section 4.12, with respect to any estate, inheritance, gift, sales, excise, transfer, personal property tax transfer or similar tax;
(3) subject to subsection (e) of this Section 4.12, assessment or governmental charge; nor shall such Guarantor be required with respect to pay Additional Amounts (1) if the payment could have been made without such any Taxes payable otherwise than by deduction or withholding from payments under or with respect to such Note or Note Guarantee;
(4) to the extent such Taxes would not have been imposed, deducted or withheld if the Holder or beneficial owner of the Note or beneficial owner of any payment on such Note had (i) made a declaration of non-residence, or any other claim or filing for exemption, to which it is entitled or (ii) complied with (to the extent legally eligible to do so) any certification, identification, information, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder or beneficial owner of such Note or any payment on such Note (provided that (x) such declaration of nonresidence or other claim or filing for exemption or such compliance is required by the applicable law of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of the imposition, deduction or withholding of, such Taxes and (y) at least 45 days prior to the first payment date with respect to which such declaration of nonresidence or other claim or filing for exemption or such compliance is required under the applicable law of the Taxing Jurisdiction, the relevant Holder at that time has been notified in writing by the Issuer, any Guarantor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption or such compliance is required to be made);
(5) to the extent such Taxes would not have been imposed, deducted or withheld if the beneficiary of the payment had presented the Notes Note for payment within 30 days after the date on which such payment or such Notes 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 Notes Note been presented on the last day of such 30-day period);
(6) in the case of any Italian withholding tax imposed pursuant to Italian Legislative Decree No. 239 of April 1, 1996, to the extent such Taxes are imposed with respect to a payment to a non-Italian resident legal entity or a non-Italian resident individual as a result of such entity or individual not being a resident of or established in a jurisdiction that allows for a satisfactory exchange of information with Italy and that is included in the White List at the payment date;
(27) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder 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 Italian withholding tax imposed with respect to such fiduciarya payment to an Italian resident legal entity or Italian resident individual pursuant to Article 7 of Italian Legislative Decree No. 461 of November 21, a member 1997; and
(8) any combination 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 of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paiditems (1) through (7) above. The obligations described under this Section foregoing provisions shall survive any termination, defeasance termination or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision Guarantor and any Taxing Jurisdiction with respect to any such Person.
(b) The Issuer or taxing the applicable Guarantor, if it is the applicable withholding agent, shall make any applicable withholding or deduction required by law and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Issuer or agency thereof the applicable Guarantor shall furnish to the Trustee, within 30 days after the date the payment of any Taxes deducted or thereinwithheld is due pursuant to applicable law, certified copies of tax receipts or, if such tax receipts are not reasonably available to the Issuer or such Guarantor, such other documentation that provides reasonable evidence of such payment by the Issuer or such Guarantor. Copies of such receipts or other documentation shall be made available by the Issuer to the Holders or the Paying Agent, as applicable, upon request.
(c) At least 30 days prior to each date on which any payment under or with respect to any Notes is due and payable, if the Issuer or any Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer or such Guarantor shall deliver to the Trustee and the Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and shall set forth such other information necessary to enable the Paying Agents to pay such Additional Amounts to Holders of such Notes on the payment date. Notwithstanding the foregoing, if the obligation to pay Additional Amounts arises after the 30th day prior to any such date, the Issuer or the applicable Guarantor shall deliver to the Trustee and the Paying Agent an Officers’ Certificate as described in the preceding sentence and shall pay such Additional Amounts promptly after such obligation arises. The Trustee and the Paying Agent shall be entitled but shall not be obligated to rely on each Officers’ Certificate until receipt of a further Officers’ Certificate addressing such matters.
(d) In addition to the foregoing, the Issuer and the Guarantors shall pay any present or future stamp, court or documentary Taxes or any other excise, property or similar Taxes that arise in any Taxing Jurisdiction from the execution, issue, delivery, enforcement or registration of the Notes, this Indenture, any Guarantee or any other document or instrument in relation thereto, and the Issuer and the Guarantors shall indemnify the Holders of the Notes for any such Taxes paid by such Holders.
Appears in 1 contract
Sources: Indenture (LKQ Corp)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary All payments by Grupo Aval Limited or is a Puerto Rican corporation is required by applicable law Grupo Aval in respect of the Notes or by the interpretation Guarantees shall be made free and clear of and without any withholding or administration thereof to withhold or deduct any amount from any payment made under or with respect to its Guarantee deduction for or on account of any present or future taxTaxes, duty, levy, impost, assessment unless the withholding or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation deduction of such Guarantor Taxes is required by law or any political subdivision or any authority or agency therein or thereof having power to taxthe official interpretation thereof, or within by the administration thereof. If Grupo Aval Limited or Grupo Aval shall be required by any other jurisdiction in which such Guarantor is resident for tax purposes law of any Taxing Jurisdiction to withhold or deduct any jurisdiction Taxes from or through which payment in respect of any sum payable under its Guarantee is made the Notes or the Guarantees, Grupo Aval Limited or Grupo Aval, as the case may be, shall (each a “Relevant Taxing Jurisdiction”), such Guarantor shall 1) pay such additional amounts (“Additional Amounts”) Amounts as may be necessary so in order that the net amount received amounts receivable by the Holders (including Additional Amounts) of any Notes after such withholding or deduction shall not be less than equals the amount the Holders respective amounts which would have received if been receivable by such Holders in the absence of such withholding or deduction, (2) make such withholding or deduction, and (3) pay the full amount withheld or deducted to the relevant tax or other authority in accordance with applicable law, except that no such Additional Amounts shall be payable in respect of any Note:
(i) to the extent that such Taxes had not been withheld are imposed or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to (a) any Taxes that would not have been so imposed but for the existence levied by reason of any present or former connection between the relevant such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over the relevant Holder, if beneficial owner) having some connection with the relevant Holder is an estate, nominee, trust or corporation) and the Relevant Taxing Jurisdiction (other than the mere receipt holding (or beneficial ownership) of such payment Note or receiving principal or interest payments on the ownership Note (including but not limited to citizenship, nationality, residence, domicile, or holding existence of a business, permanent establishment, a dependant agent, a place of business or a place of management present or deemed present in the Taxing Jurisdiction);
(ii) to the extent that any Tax is imposed other than by deduction or withholding from payments of principal of or premium, if any, or interest on the Notes;
(iii) in the event that the Holder (or beneficial owner) fails to comply with any certification, identification or other reporting requirement concerning nationality, residence, identity or connection with the Taxing Jurisdiction if (1) compliance is required by applicable law, regulation, administrative practice or treaty as a precondition to exemption from all or part of the Notes outside of Taxes, and (2) Grupo Aval Limited or Grupo Aval, as the jurisdiction of organization case may be, has given the Holders (or incorporation of the Guarantor); or (bbeneficial owners) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor at least 30 days prior notice that they shall such Guarantor be required to pay Additional Amounts comply with such requirement;
(1iv) if in the payment could have been made without such deduction or withholding if event that the beneficiary of Holder fails to surrender (where surrender is required) the payment had presented the Notes Note for payment within 30 days after Grupo Aval Limited or Grupo Aval, as the date on case may be, has made available a payment of principal or interest, provided that Grupo Aval Limited or Grupo Aval, as the case may be, shall pay Additional Amounts to which such payment 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 that the a Holder would have been entitled to Additional Amounts had the Notes Note been presented surrendered on the last day of such 30-day period);
(v) to the extent that such Taxes are imposed by reason of an estate, inheritance, gift, personal property, value added, use or sales tax or any similar taxes, assessments or other governmental charges;
(vi) where such withholding or deduction of Taxes 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 on the taxation of savings implementing the conclusions of the European Council of Economic and Finance Ministers (ECOFIN) meeting of 26 and 27 November 2000 or any law implementing or complying with, or introduced in order to conform to, such Directive;
(2vii) with respect to any payment by or on behalf of principal of (or premium, if any, on) or interest on such Notes to any a Holder who would have been able to avoid such withholding or deduction of Taxes by presenting the relevant Note to another Paying Agent in a member state of the European Union; or
(viii) any combination of items (i) through (vii) above. No Additional Amounts shall be paid to a Holder that is a fiduciary or a partnership or any person other than not the sole beneficial owner of such payment, payment to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the such beneficial owner of such payment would not have been entitled to receive the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such NotesHolder. Upon requestGrupo Aval Limited or Grupo Aval, as the Issuer case may be, shall provide the Trustee with the official receipts acknowledgment of the relevant Taxing Jurisdiction (or, if such acknowledgment is not available, other reasonable documentation) evidencing any payment of any Taxes in respect of which Grupo Aval Limited or other Grupo Aval, as the case may be, has paid any Additional Amounts. Copies of such documentation satisfactory shall be made available to the Trustee evidencing the payment Holders of the Taxes with Notes or the Paying Agents, as applicable, upon request therefor. Grupo Aval Limited or Grupo Aval, as the case may be, shall also pay any present or future stamp, issue, registration, court or documentary taxes or any excise or property taxes, charges or similar levies (including any penalties, interest and other liabilities relating thereto) which arise in any jurisdiction from the execution, delivery, registration or the making of payments in respect of the Notes and the Guarantees, excluding any such taxes, charges or similar levies imposed by any jurisdiction that is not a Taxing Jurisdiction other than those resulting from, or required to which be paid in connection with, the enforcement of the Notes and the Guarantees following the occurrence of any Default or Event of Default. All references in this Note to principal of and premium, if any, and interest on the Notes shall include any Additional Amounts are paid. The obligations described under this Section shall survive any terminationpayable by Grupo Aval Limited or Grupo Aval, defeasance or discharge as the case may be, in respect of this Indenture such principal, premium, if any, and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or thereininterest.
Appears in 1 contract
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or All payments made by the interpretation or administration thereof to withhold or deduct any amount from any payment made Company under or with respect to its a Note or by a Guarantor under or with respect to a Guarantee 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) (hereinafter hereinafter, “Taxes”) imposed or levied by or on behalf of the government of The Netherlands or any other jurisdiction in which the jurisdiction of organization Company or incorporation of such any Guarantor is organized or is a resident for tax purposes or within or through which payment is made or any political subdivision or any taxing authority or agency thereof or therein or thereof having power to tax, or within (any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each of the aforementioned being a “Relevant Taxing Jurisdiction”), unless the Company or such Guarantor shall is required to withhold or deduct any such Taxes by law or by the interpretation or administration thereof. If the Company or 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 a Note or a Guarantee of such Guarantor, the Company or such Guarantor, as applicable, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders Holder of such Note (including Additional Amounts) after such withholding or deduction shall of such Taxes will not be less than the amount the Holders such Holder would have received if such Taxes had not been required to be withheld or deducted; provided, however, that notwithstanding the foregoing obligation to pay foregoing, Additional Amounts does will not apply to be paid with respect to:
(a1) any Taxes that would not have been so imposed imposed, deducted or withheld but for the existence of any present or former connection between the relevant Holder or beneficial owner of a Note (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over over, the relevant HolderHolder or beneficial owner of such Note, if the relevant Holder or beneficial owner is an estate, nominee, trust trust, partnership or corporation) and the Relevant relevant Taxing Jurisdiction, including, without limitation, the Holder or beneficial owner being, or having been, a citizen, national, or resident, being, or having been, engaged in a trade or business, being, or having been, physically present in or having had a permanent establishment in the relevant Taxing Jurisdiction (other than but not including the mere receipt of such payment or the ownership or holding of or the Notes outside execution, delivery, registration or enforcement of such Note);
(2) subject to the jurisdiction last paragraph of organization or incorporation of the Guarantor); or (b) this Section, any estate, inheritance, gift, sales, excise, transfer, transfer or personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts ;
(13) if the payment could have been made without such any Taxes payable otherwise than by deduction or withholding from payments under or with respect to such Note or Guarantee;
(4) any Taxes that would not have been so imposed, deducted or withheld if the Holder or beneficial owner of the Note or beneficial owner of any payment on such Note had (i) made a declaration of non-residence, or any other claim or filing for exemption, to which it is entitled or (ii) complied with any certification, identification, information, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder or beneficial owner of such Note or any payment on such Note (provided that (x) such declaration of non-residence or other claim or filing for exemption or such compliance is required by the applicable law of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of the imposition, deduction or withholding of, such Taxes and (y) at least 60 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption or such compliance is required under the applicable law of the Taxing Jurisdiction, the relevant Holder at that time has been notified by the Company, any Guarantor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption or such compliance is required to be made);
(5) any Taxes that would not have been so imposed, deducted or withheld if the beneficiary of the payment had presented the Notes Note for payment within 30 days after the date on which such payment or such Notes 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 Notes Note been presented on the last day of such 30-day period), ;
(6) any payment under or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes a Note to any Holder who that is a fiduciary fiduciary, limited liability company or partnership or any person other than the sole beneficial owner of such paymentpayment or Note, 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 or Note would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such NotesNote;
(7) any Taxes that are required to be deducted or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), and any amended or successor version that is substantively comparable and not materially more onerous to comply with, any current or future regulations or agreements thereunder, official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, or any law or regulation implementing an intergovernmental agreement relating to the foregoing; or
(8) any combination of items (1) through (7) above. Upon The foregoing provisions shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor Person to the Company or a Guarantor. The Company or the applicable Guarantor will also make any applicable withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company or the applicable Guarantor will furnish to the Trustee, within 30 days after the date the payment of any Taxes deducted or withheld is due pursuant to applicable law, certified copies of tax receipts or, if such tax receipts are not reasonably available to the Company or such Guarantor, such other documentation that provides reasonable evidence of such payment by the Company or such Guarantor. Copies of such receipts or other documentation will be made available to the Holders or the Paying Agent, as applicable, upon request. At least 15 days prior to each date on which any payment under or with respect to any Notes is due and payable, unless such obligation to pay Additional Amounts arises after the 30th day prior to such date, in which case it shall be promptly delivered thereafter, if the Company or any Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer shall Company or such Guarantor will deliver to the Trustee and the Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts estimated to be so payable and will set forth such other information necessary to enable such Paying Agent to pay such Additional Amounts to Holders of such Notes on the relevant payment date. The Company or the relevant Guarantor will provide the Trustee with official receipts or other documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. Each Officers’ Certificate shall be relied upon until receipt of a further Officers’ Certificate addressing such matters. The Trustee shall be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary. Whenever in this Indenture there is mentioned, in any context, the Taxes payment of principal, premium, if any, interest or of any other amount payable under or with respect to which any Note, such mention shall be deemed to include mention of the payment of Additional Amounts are paidto the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The obligations described under this Section shall survive Company and the Guarantors will pay any terminationpresent or future stamp, defeasance court or discharge 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 the Notes, this Indenture and shall apply mutatis mutandis to or any other document or instrument in relation thereto, excluding all such taxes, charges or similar levies imposed by any jurisdiction outside any jurisdiction in which the Company or any Guarantor or any successor Person to the Issuer is organized or resident for tax purposes or any political subdivision jurisdiction in which a Paying Agent is located, other than those resulting from, or taxing authority required to be paid in connection with, the enforcement of the Notes, the Guarantees or agency thereof any other such document or thereininstrument following the occurrence of any Event of Default with respect to the Notes. The Company and the Guarantors agree to indemnify the Holders of the Notes for any such non-excluded taxes paid by such Holders.
Appears in 1 contract
Sources: Indenture (Owens-Illinois Group Inc)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment (a) All payments made under or with respect to its the Notes or any Guarantee for will 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 any related interest, penalties or additions to tax (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) unless the withholding or deduction of such Taxes is then required by law or by the official interpretation or administration thereof. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction under the government laws of which the jurisdiction of organization Issuer or incorporation of such any Guarantor is then incorporated or organized or in which the Issuer or any Guarantor is engaged in business for tax purposes or resident for tax purposes or any political subdivision or any governmental authority thereof or agency therein or thereof having power to tax, tax or within any other jurisdiction in which such Guarantor is resident for tax purposes or (2) any jurisdiction from or through which payment under its Guarantee is made by or on behalf of the Issuer or any Guarantor (each including, without limitation, the jurisdiction of any paying agent for the Notes) or any political subdivision thereof or therein (each, a “Relevant Taxing Tax Jurisdiction”)) will at any time be required to be made from any payments made under or with respect to the Notes or any Guarantee, such Guarantor shall including, without limitation, payments of principal, redemption price, interest or premium, then the Issuer or the relevant Guarantor, as applicable, will pay such additional amounts (the “Additional Amounts”) as may be necessary so in order that the net amount amounts received with respect to such payments by the Holders (including Additional Amounts) each holder of Notes after such withholding or deduction shall not be less than (including any such withholding or deduction from such Additional Amounts) will equal the amount the Holders respective amounts that would have been received if with respect to such Taxes had not been withheld payments in the absence of such withholding or deducteddeduction; provided, however, that the foregoing obligation to pay no Additional Amounts does not apply to will be payable with respect to:
(a1) any Taxes, to the extent such Taxes that would not have been so imposed but for the existence of any actual or deemed present or former connection between the relevant Holder holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over the relevant Holderholder, if the relevant Holder holder is an estate, nominee, trust trust, partnership, limited liability company or corporation) or the Beneficial Owner of Notes and the Relevant Taxing relevant Tax Jurisdiction (including, without limitation, being 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), other than connections arising from the mere receipt of such payment or the ownership acquisition or holding of such Note or a Guarantee, the Notes outside exercise or enforcement of rights under such Note or under a Guarantee or the receipt of any payments with respect to such Note or a Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result of the jurisdiction presentation of organization or incorporation a Note for payment (where Notes are in the form of certificated Notes and presentation is required) more than 30 days after the Guarantorrelevant 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); or ;
(b3) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts Taxes imposed on transfers;
(14) if the payment could have been made without such any Taxes payable other than by deduction or withholding if the beneficiary of the payment had presented from payments under, or with respect to, the Notes for payment within 30 days after the date on which such payment 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 that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2) with respect to any payment Guarantee;
(5) any Taxes to the extent such Taxes are imposed or withheld by reason of principal the failure of (the holder or premium, if any, on) or interest on such Notes to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of Notes to comply with any reasonable written request of the Issuer addressed to the holder or beneficial owner and made at least sixty (60) days before any such paymentwithholding or deduction would be payable to satisfy any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of the relevant Tax Jurisdiction, as a precondition to exemption from or reduction in the rate of deduction or withholding of, Taxes imposed by such Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) 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), any regulations promulgated thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a beneficiary or settlor non-U.S. jurisdiction and the United States with respect to such fiduciarythe foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code; or
(7) any combination of items (1) through (6) above. Such Additional Amounts will also not be payable where, a member of such a partnership or had the beneficial owner of the applicable Note been the holder of such payment Note, it would not have been entitled to the payment of Additional Amounts had such beneficiary, settlor, member or beneficial owner been by reason of any of clauses (1) to (7) inclusive above.
(b) In addition to the actual Holder of such Notes. Upon requestforegoing, the Issuer shall provide and the Trustee Guarantors, as the case may be, will also pay and indemnify the holder for any present or future stamp, issue, registration, court or documentary Taxes, or any other excise or property Taxes, charges or similar levies (including penalties, interest and any other reasonable expenses related thereto) which are levied by any Tax Jurisdiction on the execution, delivery, issuance, sale, enforcement or registration of the Notes, this Indenture, any Guarantee or any other document or instrument referred to therein, or the receipt of any payments with official receipts respect thereto, (limited, solely in the case of taxes attributable to the receipt of any payments with respect thereto, to any such taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or other documentation satisfactory (5) through (6) above or any combination thereof).
(c) If the Issuer or any Guarantor, as the case may be, becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to any series of Notes or any related Guarantee, each of the Issuer or the relevant Guarantor, as the case may be, will deliver to the Trustee 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 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 other information reasonably necessary to enable the Paying Agent to pay such Additional Amounts to holders on the relevant payment date. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary.
(d) The Issuer or the relevant Guarantor will make all withholdings and deductions required by Applicable Law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with Applicable Law. The Issuer or the relevant Guarantor will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor will furnish to the Trustee (or to a holder or beneficial owner 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 payment by the Issuer or a Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity. Upon reasonable request, copies of Tax receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the holders or beneficial owners of the Notes.
(e) Whenever in this Indenture there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Guarantee, such mention shall be deemed to which include mention of the payment of Additional Amounts are paid. to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The above obligations described under this Section shall will survive any termination, defeasance or discharge of this Indenture Indenture, and shall apply any transfer by a holder or beneficial owner of its Notes, and will apply, mutatis mutandis mutandis, to any jurisdiction under the laws of which any successor Person to the Issuer or any Guarantor is incorporated or organized or in which any successor Person to the Issuer or any Guarantor is organized engaged in business for tax purposes or resident for tax purposes (and any political subdivision or taxing governmental authority thereof or agency therein having power to tax) and any jurisdiction from or through which payment is made by or on behalf of such Person on the Notes or any Guarantee and any political subdivision thereof or therein.
Appears in 1 contract
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or All payments made by the interpretation or administration thereof to withhold or deduct any amount from any payment made Company under or with respect to its a Note or by a Guarantor under or with respect to a Guarantee 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) (hereinafter hereinafter, “Taxes”) ), unless the Company or such Guarantor is required to withhold or deduct any such Taxes by law or by the interpretation or administration thereof. If the Company or any Guarantor is so required to withhold or deduct any amount for or on account for Taxes imposed or levied by or on behalf of the government of The Netherlands or any other jurisdiction in which the jurisdiction of organization Company or incorporation of such any Guarantor is organized or is a resident for tax purposes or within or through which payment is made or any political subdivision or any taxing authority or agency thereof or therein or thereof having power to tax, or within (any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each of the aforementioned being a “Relevant Taxing Jurisdiction”)) from any payment made under or with respect to a Note or a Guarantee of such Guarantor, the Company or such Guarantor shall Guarantor, as applicable, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders Holder of such Note (including Additional Amounts) after such withholding or deduction shall of such Taxes will not be less than the amount the Holders such Holder would have received if such Taxes had not been required to be withheld or deducted; provided, however, that notwithstanding the foregoing obligation to pay foregoing, Additional Amounts does will not apply to be paid with respect to:
(a1) any Taxes that would not have been so imposed imposed, deducted or withheld but for the existence of any present or former connection between the relevant Holder or beneficial owner of a Note (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over over, the relevant HolderHolder or beneficial owner of such Note, if the relevant Holder or beneficial owner is an estate, nominee, trust trust, partnership or corporation) and the Relevant relevant Taxing Jurisdiction, including, without limitation, the Holder or beneficial owner being, or having been, a citizen, national, or resident, being, or having been, engaged in a trade or business, being, or having been, physically present in or having had a permanent establishment in the relevant Taxing Jurisdiction (other than but not including the mere receipt of such payment or the ownership or holding of or the Notes outside execution, delivery, registration or enforcement of such Note);
(2) subject to the jurisdiction last paragraph of organization or incorporation of the Guarantor); or (b) this Section, any estate, inheritance, gift, sales, excise, transfer, transfer or personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts ;
(13) if the payment could have been made without such any Taxes payable otherwise than by deduction or withholding from payments under or with respect to such Note or Guarantee;
(4) any Taxes that would not have been so imposed, deducted or withheld if the Holder or beneficial owner of the Note or beneficial owner of any payment on such Note had (i) made a declaration of non-residence, or any other claim or filing for exemption, to which it is entitled or (ii) complied with any certification, identification, information, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder or beneficial owner of such Note or any payment on such Note (provided that (x) such declaration of non-residence or other claim or filing for exemption or such compliance is required by the applicable law of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of the imposition, deduction or withholding of, such Taxes and (y) at least 60 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption or such compliance is required under the applicable law of the Taxing Jurisdiction, the relevant Holder at that time has been notified by the Company, any Guarantor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption or such compliance is required to be made);
(5) any Taxes that would not have been so imposed, deducted or withheld if the beneficiary of the payment had presented the Notes Note for payment within 30 days after the date on which such payment or such Notes 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 Notes Note been presented on the last day of such 30-day period), ;
(6) any payment under or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes a Note to any Holder who Person that is a fiduciary fiduciary, limited liability company or partnership or any person other than the sole beneficial owner of such paymentpayment or Note, 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 or Note would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such NotesNote;
(7) any Taxes that are required to be deducted or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), and any amended or successor version that is substantively comparable and not materially more onerous to comply with, any current or future regulations or agreements thereunder, official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, or any law or regulation implementing an intergovernmental agreement relating to the foregoing; or
(8) any combination of items (1) through (7) above. Upon The foregoing provisions shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor Person to the Company or a Guarantor. The Company or the applicable Guarantor will also make any applicable withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company or the applicable Guarantor will furnish to the Trustee, within 30 days after the date the payment of any Taxes deducted or withheld is due pursuant to applicable law, certified copies of tax receipts or, if such tax receipts are not reasonably available to the Company or such Guarantor, such other documentation that provides reasonable evidence of such payment by the Company or such Guarantor. Copies of such receipts or other documentation will be made available to the Holders or the Paying Agent, as applicable, upon request. At least 15 days prior to each date on which any payment under or with respect to any Notes is due and payable, unless such obligation to pay Additional Amounts arises after the 15th day prior to such date, in which case it shall be promptly delivered thereafter, if the Company or any Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer shall Company or such Guarantor will deliver to the Trustee and the Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts estimated to be so payable and will set forth such other information necessary to enable such Paying Agent to pay such Additional Amounts to Holders of such Notes on the relevant payment date. If requested by the Trustee, the Company or the relevant Guarantor will provide the Trustee with official receipts or other documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. Each Officers’ Certificate shall be relied upon until receipt of a further Officers’ Certificate addressing such matters. The Trustee and the Taxes Paying Agent shall be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary. Whenever in the Indenture there is mentioned, in any context, the payment of Principal, premium, if any, interest or of any other amount payable under or with respect to which any Note, such mention shall be deemed to include mention of the payment of Additional Amounts are paidto the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The obligations described under this Section shall survive Company and the Guarantors will pay any terminationpresent or future stamp, defeasance court or discharge 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 this the Notes, the Indenture and shall apply mutatis mutandis to or any other document or instrument in relation thereto, excluding all such taxes, charges or similar levies imposed by any jurisdiction outside any jurisdiction in which the Company or any Guarantor or any successor Person to the Issuer is organized or resident for tax purposes or any political subdivision jurisdiction in which a Paying Agent is located, other than those resulting from, or taxing authority required to be paid in connection with, the enforcement of the Notes, the Guarantees or agency thereof any other such document or thereininstrument following the occurrence of any Event of Default with respect to the Notes. The Company and the Guarantors agree to indemnify the Holders of the Notes for any such non-excluded taxes paid by such Holders.
Appears in 1 contract
Sources: Indenture (Owens-Illinois Group Inc)
Additional Amounts. If All payments made by the Co-Issuers or a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made under or with respect to its Guarantee the Notes or 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 or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) Taxes imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or Taxing Authority in any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such a Co-Issuer or Guarantor is organized or is otherwise resident or deemed resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”), unless a Co-Issuer or Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If a Co-Issuer or Guarantor is 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 the Guarantees, such Co-Issuer or Guarantor shall will (a) make such withholding or deduction and (b) remit the full amount deducted or withheld to the relevant authority in accordance with and in the time required under applicable law and (c) pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders each Holder of notes (including Additional Amounts) after such withholding or deduction shall not be less than will equal the amount the Holders Holder would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay no Additional Amounts does not apply will be payable with respect to (a) 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, 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 of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or (b) any estate, inheritance, gift, sales, excisecapital gains, transfer, excise or personal property tax or any similar tax, assessment Tax or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if 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 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 that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder who is a fiduciary or partnership charge or any person other than the sole beneficial owner of such payment, to the extent Tax 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 beneficiaryimposed, settlor, member payable or beneficial owner been the actual Holder of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.due:
Appears in 1 contract
Additional Amounts. If a Guarantor that is a Foreign Subsidiary (a) All payments made by or is a Puerto Rican corporation is required by applicable law or by on behalf of the interpretation or administration thereof to withhold or deduct any amount from any payment made Issuer under or with respect to its Guarantee a Note, or a Guarantor under or with respect to a Note 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 hereinafter, “Taxes”) ), unless any such Taxes are required to be withheld or deducted under applicable law. If any Taxes imposed or levied by or on behalf of the government of The Netherlands or any other jurisdiction in which the Issuer or any Guarantor is organized or is a resident or does business for tax purposes or within or through which payment is made by or on behalf of the Issuer or any Guarantor (including the jurisdiction of organization or incorporation of such Guarantor any Paying Agent) or any political subdivision or any taxing authority or agency thereof or therein or thereof having power to tax, or within (any other jurisdiction in which such Guarantor is resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each of the aforementioned being a “Relevant Taxing Jurisdiction”)) will at any time be required to be withheld or deducted by any applicable withholding agent from any payment made under or with respect to a Note or a Note Guarantee, or if a beneficial owner actually pays any such Taxes where the Issuer, Guarantor or any other applicable withholding agent has failed to withhold or deduct Taxes required to be withheld or deducted from any payment made under or with respect to a Note or a Note Guarantee, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders (including Additional Amounts) each beneficial owner of such Note after such withholding or deduction shall by the applicable withholding agent of such Taxes (including any such deduction or withholding of any Taxes in respect of such Additional Amounts) will not be less than the amount the Holders such beneficial owner would have received if such Taxes had not been required to be withheld or deducted; provided, however, that notwithstanding the foregoing obligation to pay foregoing, Additional Amounts does will not apply be paid:
(1) to (a) any the extent the Taxes that giving rise to such Additional Amounts would not have been so imposed imposed, deducted or withheld but for the existence of any present or former connection between the relevant Holder or beneficial owner of a Note (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over over, the relevant HolderHolder or beneficial owner of such Note, if the relevant Holder or beneficial owner is an estate, nominee, trust trust, partnership or corporation) and the Relevant relevant Taxing Jurisdiction (other than the mere receipt of such payment or the ownership acquisition, ownership, holding or holding disposition of, or the execution, delivery, registration or enforcement of, such Note or Note Guarantee);
(2) subject to subsection (e) of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or (b) this Section 4.12, with respect to any estate, inheritance, gift, sales, excise, transfer, personal property tax transfer or similar tax;
(3) subject to subsection (e) of this Section 4.12, assessment or governmental charge; nor shall such Guarantor be required with respect to pay Additional Amounts (1) if the payment could have been made without such any Taxes payable otherwise than by deduction or withholding from payments under or with respect to such Note or Note Guarantee;
(4) to the extent such Taxes would not have been imposed, deducted or withheld if the Holder or beneficial owner of the Note or beneficial owner of any payment on such Note had (i) made a declaration of non-residence, or any other claim or filing for exemption, to which it is entitled or (ii) complied with (to the extent legally eligible to do so) any certification, identification, information, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder or beneficial owner of such Note or any payment on such Note (provided that (x) such declaration of nonresidence or other claim or filing for exemption or such compliance is required by the applicable law of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of the imposition, deduction or withholding of, such Taxes and (y) at least 45 days prior to the first payment date with respect to which such declaration of nonresidence or other claim or filing for exemption or such compliance is required under the applicable law of the Taxing Jurisdiction, the relevant Holder at that time has been notified in writing by the Issuer, any Guarantor or any other Person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption or such compliance is required to be made);
(5) to the extent such Taxes would not have been imposed, deducted or withheld if the beneficiary of the payment had presented the Notes Note for payment within 30 days after the date on which such payment or such Notes 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 Notes Note been presented on the last day of such 30-day period), or ; and
(26) with respect to any payment combination of principal of items (or premium, if any, on1) or interest on such Notes to any Holder 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 of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paidthrough (5) above. The obligations described under this Section foregoing provisions shall survive any termination, defeasance termination or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision Guarantor and any Taxing Jurisdiction with respect to any such Person.
(b) The Issuer or taxing the applicable Guarantor, if it is the applicable withholding agent, shall make any applicable withholding or deduction required by law and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Issuer or agency thereof the applicable Guarantor shall furnish to the Trustee, within 30 days after the date the payment of any Taxes deducted or thereinwithheld is due pursuant to applicable law, certified copies of tax receipts or, if such tax receipts are not reasonably available to the Issuer or such Guarantor, such other documentation that provides reasonable evidence of such payment by the Issuer or such Guarantor. Copies of such receipts or other documentation shall be made available by the Issuer to the Holders or the Paying Agent, as applicable, upon request.
(c) At least 30 days prior to each date on which any payment under or with respect to any Notes is due and payable, if the Issuer or any Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer or such Guarantor shall deliver to the Trustee and the Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and shall set forth such other information necessary to enable the Paying Agents to pay such Additional Amounts to Holders of such Notes on the payment date. Notwithstanding the foregoing, if the obligation to pay Additional Amounts arises after the 30th day prior to any such date, the Issuer or the applicable Guarantor shall deliver to the Trustee and the Paying Agent an Officers’ Certificate as described in the preceding sentence and shall pay such Additional Amounts promptly after such obligation arises. The Trustee and the Paying Agent shall be entitled but shall not be obligated to rely on each Officers’ Certificate until receipt of a further Officers’ Certificate addressing such matters.
(d) In addition to the foregoing, the Issuer and the Guarantors shall pay any present or future stamp, court or documentary Taxes or any other excise, property or similar Taxes that arise in any Taxing Jurisdiction from the execution, issue, delivery, enforcement or registration of the Notes, this Indenture, any Guarantee or any other document or instrument in relation thereto, and the Issuer and the Guarantors shall indemnify the Holders of the Notes for any such Taxes paid by such Holders.
Appears in 1 contract
Sources: Indenture (LKQ Corp)
Additional Amounts. If a Guarantor (a) All payments that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made Issuers make under or with respect to its the Notes and that any Guarantor makes under or with respect to any Guarantee 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 charges (including including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (hereinafter collectively, “Taxes”) imposed or levied by or on behalf of Canada, the government of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to taxUnited States, or within any other jurisdiction in which such either Issuer or any Guarantor is incorporated, organized or otherwise resident or engaged in or carrying on business for tax purposes or any jurisdiction from or through which either of the Issuers, any Guarantor or any of their paying agents makes any payment under its Guarantee is made on the Notes or Guarantee, or by, in each case any political subdivision or taxing authority or agency thereof or therein (each each, a “Relevant Taxing Jurisdiction”), unless withholding or deduction is then required by law. If either Issuer or any Guarantor or any other applicable withholding agent is 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 Guarantee, such Guarantor shall Issuer or such Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary so to ensure that the net amount received by each Holder or beneficial owner of the Holders (including Additional Amounts) Notes after such withholding or deduction shall (including any withholding or deduction attributable to the Additional Amounts) will be not be less than the amount the Holders Holder or beneficial owners would have received if such Taxes had not been required to be withheld or deducted; provided.
(b) Neither the Issuers nor any Guarantor will, however, that the foregoing obligation to pay Additional Amounts does not apply to in respect or on account of:
(a1) any Taxes that would not have been so imposed but for by reason of the existence of any present Holder or former connection between the relevant Holder beneficial owner (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over the relevant Holderover, such Holder or beneficial owner, if the relevant such Holder or beneficial owner is an estate, nomineetrust, trust partnership, limited liability company or corporation) and being considered as having a present or former connection (including, but not limited to, citizenship, nationality, residence, domicile, incorporation, 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 such Relevant Taxing Jurisdiction)to the Relevant Taxing Jurisdiction (other than any connection arising solely from the mere acquisition, ownership or disposition of the Notes, the receipt of such payment payments under or with respect to the Notes or any Guarantee, or the ownership exercise or holding enforcement of rights under or with respect to the Notes, this Indenture or any Guarantee);
(2) any Taxes that are imposed or withheld by reason of the Notes outside failure of the jurisdiction Holder or beneficial owner of organization Notes, following the Issuers’ written request addressed to the Holder (and made at a time that would enable the Holder or incorporation 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 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, as a precondition to exemption from, or reduction in the Guarantorrate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction); , but in each case only to the extent that the Holder or beneficial owner, as the case may be, is legally eligible to provide such certification;
(b3) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts Taxes;
(14) if the payment could have been made without such any Tax which is payable otherwise than by deduction or withholding if from payments made under or with respect to the beneficiary Notes;
(5) any Canadian taxes paid or payable by reason of (i) the Holder, beneficial owner or other recipient of the amount not dealing at arm’s length with the Issuer or a Guarantor for the purposes of the Income Tax Act (Canada), or (ii) the Holder or beneficial owner being, or not dealing at arm’s length with, a “specified shareholder” of the Issuer for the purposes of subsection 18(5) of the Income Tax Act (Canada);
(6) any Tax imposed on or with respect to any payment by the Issuers 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 presented the beneficiary, partner or other beneficial owner directly held the Note;
(7) 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 within on a date more than 30 days after the date on which such payment or such Notes became due and payable or the date on which payment thereof is duly provided for, whichever is later (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;
(8) 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 European Council Directive implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the last day taxation of such 30-day period)savings income or any law implementing or complying with, or introduced in order to conform to, such European Council Directive;
(29) 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;
(10) any Taxes imposed pursuant to Sections 1471 through 1474 of the Code as of the Issue Date (and any amended or successor version that is substantially comparable) any regulations or other official guidance thereunder or agreements (including any intergovernmental agreements or any laws, rules or practices implementing such intergovernmental agreements) entered into in connection therewith; or
(11) any backup withholding pursuant to Section 3406 of the Code. In addition, Additional Amounts will not be payable with respect to any payment Taxes that are imposed in respect of principal any combination of the above items.
(c) The Issuers and each Guarantor, if they are applicable withholding agents (or premiumare otherwise required to withhold amounts under applicable law), will (i) make such withholding or deduction required by applicable law and (ii) remit the full amount deducted or withheld to the relevant taxing authority 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 any, on) or interest on such Notes the Issuers and any Guarantor will be obligated to any Holder 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 pay Additional Amounts with respect to such fiduciary, a member of payment (unless such a partnership or obligation to pay Additional Amounts arises after the beneficial owner of such payment would not have been entitled 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 Issuers will deliver to the Trustee an Officer’s Certificate stating that such Additional Amounts had will be payable and the amounts so payable and will set forth such beneficiaryother information (other than the identities of Holders and beneficial owners) necessary to enable the Trustee or Paying Agent, settloras the case may be, member or to pay such Additional Amounts to Holders and beneficial owner been owners on the actual Holder of relevant payment date. The Trustee will make such payments in the same manner as any other payments on the Notes. Upon request, the Issuer shall The Issuers will provide the Trustee with official receipts or other documentation reasonably satisfactory to the Trustee evidencing payment of such Additional Amounts.
(e) Upon request, the Issuers 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 or other evidence of the payment by the Issuers or such Guarantor, as the case may be, of any Taxes imposed or levied by a Relevant Taxing Jurisdiction.
(f) The Issuers and each Guarantor will pay any present or future stamp, issue, registration, court documentation, excise or property taxes or other similar taxes, charges and duties, including interest, additions to tax and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the Taxes receipt of any payment under or with respect to which Additional Amounts the Notes or any Guarantee, the execution, issue, delivery or registration of the Notes, any Guarantee or this Indenture 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 Guarantee or this Indenture or any such other document or instrument following the occurrence of any Event of Default with respect to the Notes. Neither the Issuers nor any Guarantor will, however, pay such amounts that are paid. imposed on or result from a sale or other transfer or disposition by a Holder or beneficial owner of a Note.
(g) The obligations described under this Section shall preceding provisions will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person person to the Issuer Issuers or any Guarantor is organized organized, incorporated or otherwise resident or engaged in or carrying on business for tax purposes and any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Restaurant Brands International Limited Partnership)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or (a) All payments made by the interpretation Company or administration thereof to withhold or deduct any amount from any payment made of the Note Guarantors under or with respect to its Guarantee the 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 penalties, interest and other liabilities related thereto) (hereinafter “"Taxes”") imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor Canada or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which the Company or any such Note Guarantor is organized or is otherwise resident for tax purposes or any jurisdiction from or through which payment under its Guarantee is made (each a “"Relevant Taxing Jurisdiction”"), such unless it is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(b) If the Company or any Note Guarantor shall 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, it will be required to pay such additional amounts (“"Additional Amounts”") as may be necessary so that the net amount received by the Holders (including Additional Amounts) after such withholding or deduction shall will not be less than the amount the that such Holders would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply (1) with respect to a payment made to a Holder (aan "Excluded Holder") (A) with which the Company or such Note 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 (B) which is subject to any Taxes that would not have been so imposed but for by reason of 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 (other than the mere receipt of such payment or the ownership or holding of the Notes outside of the jurisdiction Canada of organization or incorporation of the Guarantorsuch Note); or (b2) to any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental chargecharge ("Excluded Taxes"); nor shall such will the Company or any Note Guarantor be required to pay Additional Amounts (1) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Notes Note for payment within 30 days after the date on which such payment or such Notes 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 Notes Note been presented on the last day of such 30-day period).
(c) The Company and each Note 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 Company and each Note Guarantor will furnish to the Holders, within 30 days after the date the payment of any Taxes is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company or such Note Guarantor. The Company and each Note Guarantor will indemnify and hold harmless each Holder (other than an Excluded Holder or with respect to Excluded Taxes) and upon written request will reimburse each such Holder for the amount of (1) any Taxes so levied or imposed and paid by such Holder as a result of payments made under or with respect to the Notes and (2) any Taxes levied or imposed and paid by such Holder with respect to any reimbursement under clause (1), but excluding any such Taxes on such Holder's income or net income.
(d) At least 30 days prior to each date on which any payment of principal of (under or premiumwith respect to the Notes is due and payable, if any, on) the Company or interest on such Notes the Note Guarantors will be obligated to any Holder 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 pay Additional Amounts 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 of such Notes. Upon requestpayment, the Issuer shall provide Company and the Trustee with official receipts or other documentation satisfactory Note Guarantors will deliver to the Trustee evidencing 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 Trustee to pay such Additional Amounts to Holders on the payment date.
(e) Whenever in this Indenture there is mentioned, in any context: (1) the payment of the Taxes principal; (2) purchase prices in connection with a purchase of Notes; (3) interest; or (4) any other amount payable on or with respect to which any of the Notes, such reference shall be deemed to include payment of Additional Amounts are paid. The obligations as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The Company and the Note Guarantors will 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 the Notes, this Indenture or any other document or instrument in relation thereof, or the receipt of any payments with respect to the Notes, excluding such taxes, charges or similar levies imposed by any jurisdiction outside of Canada, the jurisdiction of incorporation of any successor of the Company or any of the Note Guarantors or any jurisdiction in which a paying agent is located, and the Company and the Note Guarantors will agree to indemnify the Holders for any such taxes paid by such Holders.
(g) The obligations of the Company and the Note Guarantors under this Section shall 10.21 will survive any termination, defeasance or discharge of this Indenture and shall will apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer Company or any Note Guarantor, as applicable, is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Hollinger Inc)
Additional Amounts. If a Guarantor All payments that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made Issuer makes under or with respect to its Guarantee the 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 (hereinafter collectively, “Taxes”) imposed or levied on such payments by or on behalf of any jurisdiction (other than the government United States, any state thereof or the District of the jurisdiction of organization or incorporation of such Guarantor or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction Columbia) in which such Guarantor the Issuer is organized, resident or doing business for tax purposes or any jurisdiction from or through which it (or its agents, including the Paying Agent) makes any payment under its Guarantee is made on this Note or by or within any department, political subdivision or governmental authority of or in any of the foregoing having power to tax (each each, a “Relevant Taxing Jurisdiction”), such Guarantor unless the Issuer 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 of law. If the Issuer or other applicable withholding agent is 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 this Note, the Issuer shall pay such additional amounts (“Additional Amounts”) as may be necessary so to ensure that the net amount received by each beneficial owner of the Holders (including Additional Amounts) Notes after such withholding or deduction shall (including any withholding or deduction in respect of any Additional Amounts) will not be less than the amount the Holders beneficial owner would have received if such Taxes had not been withheld or deducted; provided. The Issuer shall not, however, that the foregoing obligation to pay Additional Amounts does not apply to (a) any Taxes that would not have been so imposed but for the existence of any present in respect or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, member or shareholder on account 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 of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if 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 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 that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder 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 of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.:
Appears in 1 contract
Additional Amounts. If a All payments made by or on behalf of the Issuer or any Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or by the interpretation or administration thereof to withhold or deduct any amount from any payment made under or with respect to its Guarantee this Note or 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 or other governmental charge (including without limitation, penalties, interest and any other liabilities related liability with respect thereto) (hereinafter “Taxes”) ), unless the Issuer or any Guarantor (is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant taxing authority. If the Issuer or any Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of of: any jurisdiction in which the government of the jurisdiction of organization Issuer or incorporation of such any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such Guarantor is resident for tax purposes therein; or any jurisdiction from or through which payment under its Guarantee is made (each a “Relevant Taxing Jurisdiction”)from any payment made under or with respect to this Note or the Guarantees, as applicable, including payments of principal, redemption price, or interest, if any, the Issuer or any such Guarantor shall will pay (together with such payments) to the Holder, such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders Holder (including the Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders such Holder would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to (a) 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, 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 of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if 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 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 that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder 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 of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or Payments made by the interpretation or administration thereof to withhold or deduct any amount from any payment made Company under or with respect to its the Notes or any of the Subsidiary Guarantors with respect to any Subsidiary 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 “Taxes”) unless the withholding or deduction of Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or (1) any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such the Company or any Subsidiary Guarantor is at any relevant time organized, engaged in business for tax purposes or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which payment under its Guarantee is made by or on behalf of the Company or any Subsidiary Guarantor (each including the jurisdiction of any paying agent) or any political subdivision thereof or therein (each, a “Relevant Taxing Tax Jurisdiction”)) will at any time be required to be made from any payments made by the Company under or with respect to the Notes or any of the Subsidiary Guarantors with respect to any Subsidiary Guarantee, such Guarantor shall the Company or the relevant Subsidiary Guarantor, as applicable, will pay to each Holder of Notes that are outstanding on the date of the required payment, such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders applicable beneficial owner (including the Additional Amounts) after such withholding or deduction shall not be less than (including any such withholding or deduction in respect of Additional Amounts) will equal the amount the Holders such beneficial owner would have received if such Taxes had not been withheld or deducted; provided, however, provided that the foregoing obligation to pay no Additional Amounts does not apply will be payable with respect to (a) any Taxes that would not have been so imposed but for the existence of any present a payment to a Holder 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 beneficial owner of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if 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 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 that the Holder would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period), or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Notes to any Holder 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 of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.an “Excluded Holder”):
Appears in 1 contract
Sources: Indenture (Cascades Inc)
Additional Amounts. If a Guarantor that is a Foreign Subsidiary or is a Puerto Rican corporation is required by applicable law or Payments made by the interpretation or administration thereof to withhold or deduct any amount from any payment made Company under or with respect to its the Notes or any of the Guarantors under or with respect to any Note Guarantee will be made without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge charge, including any related interest, penalties or additions to tax (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of the government of the jurisdiction of organization or incorporation of such Guarantor or (1) any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which such the Company or any Guarantor is from time to time organized, engaged in business for tax purposes or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which payment under its Guarantee is made by or on behalf of the Company or any Guarantor (each including the jurisdiction of any paying agent) or any political subdivision thereof or therein (each, a “Relevant Taxing Tax Jurisdiction”)) will at any time be required to be made from any payments made by the Company under or with respect to the Notes or any of the Guarantors under or with respect to any Note Guarantee, such Guarantor shall the Company or the relevant Guarantor, as applicable, will pay to each Holder of Notes, such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders such Holder (including the Additional Amounts) after such withholding or deduction shall will not be less than the amount the Holders such Holder would have received if such Taxes had not been withheld or deducted; provided, however, provided that the foregoing obligation to pay no Additional Amounts does not apply will be payable with respect to a payment to a Holder of the Notes (to the extent the following exclusions apply, an “Excluded Holder”):
(a) which is subject to such Taxes by reason of it not dealing at arm’s-length (within the meaning of the Income Tax Act) with the Company or the Guarantors, as applicable, at the time of making such payment,
(b) which is subject to such Taxes by reason of its being connected with a relevant Tax Jurisdiction or any province or territory thereof otherwise than by the acquisition, ownership or disposition of the Notes, the receipt of payments in respect of such Note or a Note Guarantee or the enforcement thereof,
(c) in respect of such Taxes that would not have been so imposed but for the existence of any present withheld 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, deducted 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 of the Notes outside of the jurisdiction of organization or incorporation of the Guarantor); or (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall such Guarantor be required to pay Additional Amounts (1) if the payment could have Note had 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 Company made available to such Holder a payment or such Notes became due and payable or of principal in accordance with the date on which payment thereof is duly provided forterms of this Indenture, whichever is later (except to the extent that the such Holder would have been entitled to Additional Amounts had the Notes Note been presented on the last day of such 30-30 day periodperiod and there were no additional withholdings or deductions as a result of such late presentment,
(d) in respect of any estate, inheritance, gift, transfer, excise, personal property or similar taxes, duties assessments or other similar governmental charges,
(e) which, despite being required by law, statute, treaty, regulation or administrative practice of the relevant Tax Jurisdiction as a precondition to exemption from all or part of such Taxes, failed to comply with a timely request of the Company to provide information concerning such Holder’s nationality, residence, entitlement to treaty benefits, identity or connection with a Tax Jurisdiction or to make any timely or valid declaration or similar claim or satisfy any certification information or other reporting requirement, if and to the extent that due and timely compliance with such request would have reduced or eliminated any Taxes as to which Additional Amounts would have otherwise been payable to such Holder but for this clause, or
(f) any combination of the above clauses in this proviso. The Company or the relevant Guarantor will also:
(a) make such withholding or deduction, and
(b) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company or the relevant Guarantor will furnish to the Trustee, within 60 days after the date the payment of any Taxes are due pursuant to applicable law, copies of tax receipts, if any (or other documentation), evidencing the payments of Taxes made by the Company, or a Guarantor, as the case may be on behalf of the Holders. The Company and the Guarantors will indemnify and hold harmless each Holder of Notes and upon written request reimburse each such Holder for the amount of:
(a) any Taxes (other than any Taxes excluded from Additional Amounts in clauses (a) through (f) above) levied or imposed and paid by such Holder as a result of any failure of the Company or the relevant Guarantor to withhold, deduct or remit to the relevant authority, on a timely basis, the full amount required under applicable law,
(b) any liability (including penalties, interest and expense) arising therefrom or with respect thereto, and
(c) any Taxes (other than (i) any Taxes excluded from Additional Amounts in clauses (a) through (f) above and (ii) any Taxes that are in the nature of taxes on net income, taxes on capital, franchise taxes, net worth taxes and similar taxes that in each case, are imposed by any jurisdiction as a result of the Holder being connected with such jurisdiction or any province or territory thereof otherwise than by the acquisition, ownership or disposition of the Notes, the receipt of payments in respect of such Note or a Note Guarantee or the enforcement thereof) imposed with respect to any reimbursement under clause (a) or (2b) above. In addition to the foregoing, the Company and the Guarantors will also pay and indemnify each Holder for any present or future stamp, issue, registration, transfer, court or 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 Note Guarantee or any other document referred to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Notes or any Note Guarantee. If the Company or any Guarantor becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or a Note Guarantee, the Company or such Guarantor, as the case may be, will deliver to the Trustee on a date which is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Company or such Guarantor shall notify the Trustee promptly thereafter) 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 reasonably necessary to enable the Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context:
(a) the payment of principal of (or and premium, if any),
(b) purchase prices in connection with a repurchase of Notes,
(c) interest and Additional Interest, onif any, or
(d) any other amount payable on or interest on such Notes with respect to any Holder who is a fiduciary or partnership of the Notes or any person other than Note Guarantee, such mention shall be deemed to include mention of the sole beneficial owner payment of such payment, Additional Amounts provided for in this Section 4.19 to the extent that a beneficiary or settlor with respect to that, in such fiduciarycontext, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiaryare, settlor, member were or beneficial owner been the actual Holder of such Notes. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with would be payable in respect to which Additional Amounts are paidthereof. The above obligations described under this Section shall will survive any termination, defeasance or discharge of this Indenture and shall apply any transfer by a holder or beneficial owner of its Notes, and will apply, mutatis mutandis mutandis, to any jurisdiction in which any successor Person to the Issuer is organized Company or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes (or any Note Guarantee) and, in each case, any department or political subdivision or taxing authority or agency thereof or therein.
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