Net Payments. (i) All payments made by the Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect. (ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall: (A) promptly notify the Administrative Agent of such requirement; (B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a)); (C) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and (D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required. (iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure. (iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all amounts payable hereunder. (b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.
Appears in 4 contracts
Sources: Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.)
Net Payments. (i) All payments made by the Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), ) and (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of the Revolving Credit Loans and the Swingline Loans and all other amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans or Swingline Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.
Appears in 4 contracts
Sources: Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.)
Net Payments. (ia) All payments made by the Borrower each Credit Agreement Party hereunder and under this Agreement shall any Note will be made free and clear of, and without deduction or withholding for or on account offor, any current Indemnified Taxes or future income Other Taxes; provided, that if any Indemnified Taxes are required to be withheld or deducted from such payments, then the Credit Agreement Parties (other taxesthan, levieswith respect to any Loans or Obligations (other than Obligations constituting U.S. Borrower guarantees of Obligations of the Canadian Borrower) of the U.S. Borrower, impoststhe Canadian Credit Parties) jointly and severally agree that (i) the sum payable shall be increased as necessary so that after making all required deductions or withholding (including deduction or withholdings applicable to additional sums payable under this Section) the Administrative Agent or Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, duties, charges, fees, (ii) such Credit Agreement Party will make such deductions or withholdings, now and (iii) such Credit Agreement Party shall pay the full amount deducted or hereafter imposedwithheld to the relevant Governmental Authority in accordance with applicable law However, leviedno such additional sums shall be payable by the Canadian Borrower with respect to a payment by or on account of any obligation of the Canadian Borrower hereunder to a person (x) with which the Canadian Borrower does not deal with at arm’s length (within the meaning of the Income Tax Act (Canada)) at the time of making such payment or (y) which is subject to such Indemnified Taxes by reason of its failure to comply with any certification, collectedidentification, withheld information, documentation or assessed other reporting requirements 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 of withholding of, such Indemnified Taxes. In addition, the Credit Agreement Parties shall pay any Other Taxes to the relevant Governmental AuthorityAuthority in accordance with applicable law. Holdings, excluding (A) any net income taxesthe U.S. Borrower or the Canadian Borrower, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on as the case may be, will furnish to the Administrative Agent within 45 days after the date the payment of any Indemnified Taxes or Other Taxes is due pursuant to applicable law certified copies of tax receipts evidencing such payment by Holdings, the U.S. Borrower or the Canadian Borrower, as the case may be. The Credit Agreement Parties (other than, with respect to any Loans or Obligations (other than Obligations constituting U.S. Borrower guarantees of Obligations of the Canadian Borrower) of the U.S. Borrower, the Canadian Credit Parties) jointly and severally agree to indemnify and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Indemnified Taxes or Other Taxes so levied or imposed and paid by such Lender.
(b) To the extent legally entitled to do so, each Lender to the U.S. Borrower that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes agrees to deliver to the U.S. Borrower and the Administrative Agent on or prior to the Effective Date or, in the case of a Lender that is a Lender to the U.S. Borrower and that is an assignee or transferee of an interest under this Agreement pursuant to Section 2.13 or 13.04(b) (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer), on the date of such assignment or transfer to such Lender, (Bi) two accurate and complete original signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under an income tax treaty) (or successor forms) certifying to such Lender’s entitlement as of such date to a complete exemption from or reduction in United States withholding tax with respect to payments to be made under this Agreement and under any Note, or (ii) if the Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under an income tax treaty) (or any successor forms) pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit D (any such taxes attributable certificate, a “Section 5.04(b)(ii) Certificate”) and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN (with respect to the failure portfolio interest exemption) (or successor form) certifying to such Lender’s entitlement as of such date to a complete exemption from United States withholding tax with respect to payments of interest to be made under this Agreement and under any Note. In addition, each Lender that is a Lender to the U.S. Borrower agrees that from time to time after the Effective Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, such Lender will deliver to the U.S. Borrower and the Administrative Agent two new accurate and complete original signed copies of Internal Revenue Service Form W-8ECI, Form W-8BEN (with respect to the benefits of any income tax treaty), or any Form W-8BEN (with respect to the portfolio interest exemption) and a Section 5.04(b)(ii) Certificate, as the case may be, and such other forms as may be required in order to confirm or establish the entitlement of such Lender to comply a continued exemption from or reduction in United States withholding tax with Section 5.3(c)respect to payments under this Agreement and any Note, (C) any or such taxes imposed on Lender shall immediately notify the U.S. Borrower and the Administrative Agent of its inability to deliver any such Form or any Lender as a result of a current or former connection between the Administrative Agent or Certificate, in which case such Lender shall not be required to deliver any such Form or Certificate pursuant to this Section 5.04(b). Notwithstanding anything to the contrary contained in Section 5.04(a), but subject to Section 13.04(b) and the jurisdiction of immediately succeeding sentence, the Governmental Authority imposing such tax U.S. Borrower shall be entitled, to the extent it is required to do so by law, to deduct or withhold income or similar taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein (therein) from interest, Fees or other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or by it hereunder for the account of any Lender which is not a Lender at United States person (as such term is defined in Section 7701(a)(30) of the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7Code) or designates a new lending office, except for U.S. Federal income tax purposes to the extent that such Lender has not provided to the U.S. Borrower the Internal Revenue Service Forms that establish a complete exemption from such deduction or withholding. For the avoidance of doubt, the Credit Agreement Parties (or its assignorother than, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant any Loans or Obligations of the U.S. Borrower, the Canadian Credit Parties) jointly and severally agree to this pay any additional amounts and to indemnify each Lender with respect to Indemnified Taxes or Other Taxes in the manner set forth in Section 5.3(a), 5.04(a) (“Taxes”) except without regard to the extent that such identity of the jurisdiction requiring the deduction or withholding is required withholding) in respect of any Indemnified Taxes or Other Taxes deducted or withheld by them as described in the immediately preceding sentence as a result of any changes that are effective after the Effective Date in any applicable law, as modified by treaty, governmental rule, regulation, guideline or order, or in the administrative practice interpretation thereof, relating to the deducting or withholding of any relevant Governmental Authority then in effectsuch Indemnified Taxes or Other Taxes.
(iic) Subject Each Lender to the U.S. Borrower that is a United States Person, as defined in Section 5.3(b7701(a)(30) of the Code, shall (unless such Lender may be treated as an exempt recipient based on the indicators described in Treasury Regulation Section 1.6049-4(c)(1)(ii)(A)(1)) deliver to the U.S. Borrower and the Administrative Agent, at the times specified in Section 5.04(b), if two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form that such Taxes are required Person is entitled to be withheld provide at such time, in order to qualify for an exemption from any amounts payable to United States back-up withholding requirements.
(d) If the Administrative Agent or any Lender hereunderdetermines, in its sole discretion, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly Credit Agreement Parties or with respect to which a Credit Agreement Party has paid additional amounts pursuant to Section 5.04(a), it shall pay to the relevant Governmental Authority when due the full Credit Agreement Party an amount required equal to be deducted or withheld such refund (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower but only to the Administrative Agent extent of indemnity payments made, or additional amounts paid, by such Lender Credit Agreement Party under this Section 5.3(a));
(C5.04(a) as promptly as possible thereafter, forward with respect to the Administrative Agent an official receipt (Indemnified Taxes or a certified copyOther Taxes giving rise to such refund), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to net of all reasonable out-of-pocket expenses of the Administrative Agent or such Lender, in addition as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the relevant Credit Agreement Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Agreement Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the payment to which Administrative Agent, such Lender or such Issuing Bank in the event the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under repay such refund to such Governmental Authority. Nothing in this Section 5.3(a5.04(d) in respect of any payment shall be construed to or for the benefit of obligate the Administrative Agent or any Lender under this Agreement to disclose its Tax returns or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent any other information regarding its Tax affairs or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable computations to any amount payable under this Agreement pursuant Person or otherwise to Section 5.3(a) above to arrange its Tax affairs in any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10manner other than as it determines in its sole discretion.
Appears in 3 contracts
Sources: Credit Agreement (Bway Parent Company, Inc.), Credit Agreement (Phoenix Container, Inc.), Credit Agreement (BWAY Holding CO)
Net Payments. (ia) All payments made by the each Borrower under this Agreement and/or under any Credit Document shall be made free without setoff or counterclaim and clear of, and without in such amounts as may be necessary in order that all such payments (after deduction or withholding for or on account of, of any current present or future income or other taxes, levies, imposts, duties, charges, fees, deductions duties or withholdings, now or hereafter imposed, levied, collected, withheld or assessed other charges of whatsoever nature imposed by any Governmental Authority, excluding other than any tax (Aincluding any franchise tax) any imposed on or measured by the net income taxesor net profits of a Bank, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lendertax on or measured by the capital of a Bank, (B) any such taxes attributable pursuant to the failure income tax laws of the Administrative Agent jurisdictions where such Bank's principal or applicable lending office is located (collectively, "Taxes")) shall not be less than the amounts otherwise specified to be paid under this Agreement and/or under any Lender Credit Document. If any Borrower is required by law to comply with Section 5.3(c)make any deduction or withholding on account of Taxes from any payment due hereunder or under the Notes, then (Ca) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or Borrower shall timely remit such Lender and the jurisdiction of Taxes to the Governmental Authority imposing the same and (b) the amount payable hereunder or under the Notes will be increased to such amount which, after deduction from such increased amount of all amounts required to be deducted or withheld therefrom, will not be less than the amount otherwise due and payable hereunder. Without prejudice to the foregoing, if any Bank or any Agent is required to make any payment on account of Taxes, the Applicable Borrower will, upon notification by the Bank or the Agent promptly indemnify such person against such Taxes, together with any interest, penalties and expenses payable or incurred in connection therewith. Each Borrower shall also reimburse each Bank, upon the written request of such Bank, for taxes imposed on or measured by the net income or net profits of such Bank pursuant to the laws of the jurisdiction in which the principal office or applicable lending office of such Bank is located or under the laws of any political subdivision or taxing authority of any such jurisdiction as such Bank shall determine are payable by such Bank in respect of Taxes paid to or on behalf of such Bank pursuant to this Section 3.04. For purposes of this Section, the term "Taxes" includes interest, penalties and expenses payable or incurred in connection therewith. A certificate as to any additional amounts payable to a Bank under this Section 3.04 submitted to the Borrower by such Bank shall, absent manifest error, be final, conclusive and binding for all purposes upon all parties hereto. With respect to each deduction or withholding for or on account of any Taxes, the Borrowers shall promptly furnish to each Bank such certificates, receipts and other documents as may be required (in the judgment of such Bank) to establish any tax credit to which such Bank may be entitled.
(b) Each Bank that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) that makes a Loan to a U.S. Borrower agrees to deliver to the U.S. Borrowers and the Administrative Agent on or prior to the Closing Date, or in the case of a Bank that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.04 (unless the respective Bank was already a Bank hereunder immediately prior to such assignment or transfer), on the date of such assignment or transfer to such Bank, (i) two accurate and complete original signed copies of Internal Revenue Service Form 4224 or 1001 (or successor or additional forms) certifying to such Bank's entitlement to a complete exemption from United States withholding tax with respect to payments to be made under this Agreement and under any Note or other Credit Document, or (ii) if the Bank is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form 1001 or 4224 pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit P (any such certificate, a "Section 3.04 Certificate") and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8 (or successor or additional forms) certifying to such Bank's entitlement to a complete exemption from United States withholding tax with respect to payments to be made under this Agreement and under any Note or other Credit Document. In addition, each Bank agrees that from time to time after the Closing Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to the U.S. Borrowers and the Administrative Agent two new accurate and complete original signed copies of Internal Revenue Service Form 4224 or 1001, or Form W-8 and a Section 3.04 Certificate, as the case may be, and such other forms as may be required in order to confirm or establish the entitlement of such Bank to a continued exemption from or reduction in United States withholding tax with respect to payments under this Agreement and any Note, or it shall immediately notify the U.S. Borrowers and the Administrative Agent of its inability to deliver any such Form or Certificate, in which case such Bank shall not be required to deliver any such form or certificate pursuant to this Section 3.04(b). Notwithstanding anything to the contrary contained in Section 3.04(a), but subject to Section 11.04(b) and Section 3.04(c), (x) the Borrowers shall be entitled, to the extent they are required to do so by law, to deduct or withhold income or similar taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein (therein) from interest, fees or other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or hereunder for the account of any Bank which is not a Lender at United States person (as such term is defined in Section 7701(a)(30) of the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7Code) or designates a new lending office, except for U.S. Federal income tax purposes to the extent that such Lender Bank has not provided to the Borrowers U.S. Internal Revenue Service Forms that establish a complete exemption from such deduction or withholding and (y) the Borrowers shall not be obligated pursuant to Section 3.04(a) hereof to gross up payments to be made to a Bank in respect of income or its assignor, similar taxes imposed by the United States if any(I) was entitled, at such Bank has not provided to the time of designation of a new lending office or assignment, Borrowers the Internal Revenue Service Forms required to receive additional amounts from the be provided to Borrower with respect to such withholding tax pursuant to this Section 5.3(a)3.04(b) or (II) in the case of a payment, other than interest, to a Bank described in clause (“Taxes”ii) except above, to the extent that such deduction or Forms do not establish a complete exemption from withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effectsuch taxes.
(iic) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable Notwithstanding anything to the Administrative Agent or any Lender hereundercontrary contained elsewhere in this Section 3.04, the Borrower shall:
Borrowers, jointly and severally, agree to pay additional amounts and to indemnify each Bank in the manner set forth in Section 3.04(a) (A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay without regard to the relevant Governmental Authority when due identity of the full amount required to be deducted or withheld (including jurisdiction requiring the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(awithholding) in respect of any payment to amounts deducted or for withheld by it as described in the benefit last sentence of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C3.04(b) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failureany changes after the Closing Date in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deduction or withholding of income or similar Taxes.
(ivd) The Borrower’s obligations Each Bank which is resident for tax purposes in the United Kingdom and which is making a loan to a U.K. Borrower or which is making a loan to a U.K. Borrower through a U.K. branch hereby represents that it is a "bank" within the meaning of section 840A Income and Corporation Taxes ▇▇▇ ▇▇▇▇, and that it is beneficially entitled to the interest payable to it under this Agreement, undertakes to notify the U.K. Borrower and the Administrative Agent if either representation ceases to be correct, and further agrees to ensure that such interest is brought within the charge to United Kingdom corporation tax by the person beneficially entitled to the interest.
(e) Each Bank which is not resident for tax purposes in the United Kingdom and which is making a loan to a U.K. Borrower through a branch located outside the United Kingdom agrees to furnish to the tax authorities of the country in which such Bank is resident for tax purposes on or prior to the Closing Date (or if such Bank becomes a Bank after the Closing Date, at or prior to the time the Bank becomes a Bank), for certification and forwarding by such tax authorities to the United Kingdom Inland Revenue, the form specified by the United Kingdom Inland Revenue for such purposes. For the avoidance of doubt, a Bank shall be entitled to receive additional amounts pursuant to Section 3.04(a) which are attributable to the withholding or deduction imposed during the period that the form is being processed by the United Kingdom Inland Revenue.
(f) In addition, the Applicable Borrower agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies which arise from any payment made by or to it hereunder or under its Note or from the execution and delivery by it or registration of, or otherwise with respect to, its participation in this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(g) If Holdings or any Credit Party pays any additional amount under this Section 5.3(a) shall survive 3.04 to a Bank and such Bank determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its tax liabilities in or with respect to the termination of this Agreement and taxable year in which the payment of all amounts payable hereunder.
additional amount is paid (b) Notwithstanding Section 5.3(aa "Tax Benefit"), such Bank shall pay to such Person an amount that the Borrower Bank shall, in its sole discretion, determine is equal to the net benefit, after tax, which was obtained by the Bank in such year as a consequence of such Tax Benefit; provided, however, that (i) such Bank shall not be required to indemnify or pay make any additional amounts in respect of withholding tax applicable to any amount payable payment under this Agreement pursuant to paragraph of this Section 5.3(a) above to any Non-U.S. Lender, except 3.04 if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default shall have occurred and be continuing; (ii) any taxes that are imposed on a Bank as a result of a disallowance or reduction (including through the expiration of any tax credit carryover or carryback of such Bank that otherwise would not have expired) of any Tax Benefit with respect to which such Bank has made a payment to Holdings or any Credit Party pursuant to this paragraph of this Section 10.1 3.04 shall be treated as a tax for which Holdings or 10.such Credit Party is obligated to indemnify such Bank pursuant to this Section 3.04 without any exclusions or defenses; (iii) such Bank shall not be required to make any payment under this paragraph of this Section 3.04 in excess of such additional amounts received by such Bank; and
Appears in 3 contracts
Sources: Credit Agreement (Morris Material Handling Inc), Credit Agreement (MMH Holdings Inc), Credit Agreement (MMH Holdings Inc)
Net Payments. (ia) All payments made by the Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (Ai) any net income taxes, taxes and franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (Bii) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), ) and (Ciii) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if . If any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent and such Lender an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative AgentAgent and such Lender, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) . If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent or such Lender, as applicable, with the documentation referred to in this Section 5.3(a)(ii)(C5.3(a) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) . The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.
Appears in 3 contracts
Sources: Term Loan Credit Agreement (ITC Holdings Corp.), Term Loan Credit Agreement (ITC Holdings Corp.), Term Loan Credit Agreement (ITC Holdings Corp.)
Net Payments. (a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.
(i) All Any and all payments made by or on account of any obligation of any Credit Party hereunder or under any other Credit Document shall to the Borrower under this Agreement shall extent permitted by applicable laws be made free and clear of, of and without deduction reduction or withholding for or on account of, any current or future income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed Taxes.
(ii) A payment shall not be increased under paragraph (i) above by any Governmental Authority, excluding reason of Swiss Withholding Tax if (A) the Non-Bank Rules would not have been violated if the assigning Lender would have complied with its obligation to obtain the consent of the Borrower Representative to the assignment of all or a portion of its Loans and Commitment under Section 14.6 (Successors and Assigns) or if (B) the Lender in relation to which the Swiss Borrower makes the payment was a Qualifying Bank when it became a Lender under this Agreement but on that date such Lender is not or has ceased to be a Qualifying Bank, other than as a result of any net income taxesChange in Law after the date it became a Lender under this Agreement.
(iii) If any Credit Party, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lenderother applicable Withholding Agent shall be required by applicable law to withhold or deduct any Taxes from any payment, then (A) such Withholding Agent shall withhold or make such deductions as are reasonably determined by such Withholding Agent to be required by applicable law, (B) any such taxes attributable Withholding Agent shall timely pay the full amount withheld or deducted to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c)relevant Governmental Authority, and (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such the withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum payable by the applicable Credit Party shall be increased as necessary so that after any required withholding or deductions have been made (including withholding or deductions applicable to additional sums payable under this Section 6.4) each Lender (or its assignoror, if any) was entitled, at in the time of designation case of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable payment to the Administrative Agent or any Lender hereunderfor its own account, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay receives an amount equal to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender sum it would have received had no such deduction withholding or withholding deductions been requiredmade.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.
Appears in 3 contracts
Sources: Credit Agreement (Canada Goose Holdings Inc.), Credit Agreement (Canada Goose Holdings Inc.), Credit Agreement (Canada Goose Holdings Inc.)
Net Payments. (ia) All payments made by the US Borrower and the UK Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (Ai) any net income taxes, taxes and franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, Lender and (Bii) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to ). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), withholdings (“Non-Excluded Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower amounts so payable to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward shall be increased to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable extent necessary to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, in addition as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the payment to which the Administrative Agent for its own account or for the account of such Lender is otherwise entitled under this AgreementLender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such additional amount as is necessary to ensure that the net amount actually Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was other required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do sodocumentary evidence, the US Borrower or the UK Borrower, as the case may be, shall forthwith on demand fully indemnify the Administrative Agent or such Lender and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such any Lender as a result of any such failure.
(iv) . The Borrower’s obligations under agreements in this Section 5.3(a5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Notwithstanding Each Non-U.S. Lender shall:
(i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 5.3(a871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement;
(ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and
(iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver.
(c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender at became a party to this Agreement (or, in the request or with case of a Participant that is not organized under the consent laws of the Borrower United States of America or were assigneda state thereof (a “Non-U.S. Participant”), participated or transferred to on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender following (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the occurrence indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made.
(d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if:
(i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender;
(ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or
(iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date.
(e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4.
(f) Each Lender represents and agrees that, on the Funding Date and at all times during the continuance term of an Event this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of Default pursuant the Code and the regulations thereunder) with respect to Section 10.1 or 10the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.
Appears in 2 contracts
Sources: Credit Agreement (Rockwood Specialties Group Inc), Credit Agreement (Rockwood Holdings, Inc.)
Net Payments. (i) All payments made by any Borrower of principal of, and interest on, the Borrower under this Agreement Loans and all other amounts payable hereunder shall be made free and clear of, of and without deduction or withholding for or on account of, any current present or future income income, stamp or other taxesTaxes, levies, impostsfees, duties, charges, fees, deductions withholdings or withholdings, now or hereafter imposed, levied, collected, withheld or assessed other charges of any nature whatsoever imposed by any Governmental Authoritytaxing authority, excluding (A) other than Taxes imposed on or measured by any Bank's net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower receipts with respect to payments received hereunder (such non-excluded items being called "Charges"). In the event that any withholding tax or deduction from any payment to be made by any Borrower hereunder is required in respect of any Charges pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority rule or regulation, then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shallwill:
(Aa) promptly notify the Administrative Agent of such requirement;
(B) promptly pay directly to the relevant Governmental Authority when due authority the full amount required to be deducted so withheld or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a))deducted;
(Cb) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable satisfactory to the Administrative Agent, Agent evidencing such payment to such Governmental Authority; andauthority;
(Dc) pay to the Administrative Agent or such Lender, in addition to for the payment to which account of the Administrative Agent or such Lender is otherwise entitled under this Agreement, Banks such additional amount or amounts as is are necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, each Bank will equal the full amount the Administrative Agent or such Lender Bank would have received had no such withholding or deduction or withholding been required.; and
(iiid) If the Borrower fails to pay to the relevant Governmental Authority when due if any Taxes that it was required to deduct or withhold under this Section 5.3(a) Bank receives a refund in respect of any payment Taxes as to which it has been indemnified by any Borrower or for with respect to which any Borrower (or any Person acting on behalf of such Borrower) has paid additional amounts pursuant to this Section 4.7, it shall promptly repay such refund (but only to the benefit extent of indemnity payments made, or additional amounts paid, by such Borrower (or such Person acting on behalf of such Borrower) under this Section 4.7 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of such Bank or the Administrative Agent, as the case may be; provided, that such Borrower, upon the request of such Bank or the Administrative Agent, agrees to return such refund (together with any penalties, interest or other charges due in connection therewith to the appropriate taxing authority or other Governmental Authority) to such Bank or the Administrative Agent in the event such Bank or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when is required to do sopay or to return such refund to the relevant taxing authority or other Governmental Authority. Each Bank that is organized under the laws of a jurisdiction other than the United States shall, prior to the due date of any payments under the Loans, execute and deliver to the Borrowers, on or about the first scheduled payment date in each calendar year, a United States Internal Revenue Service Form 4224 or Form 1001, as may be applicable (or any successor form), appropriately completed. Without prejudice to the survival of any other agreement of the Borrowers hereunder or any other document, the Borrower shall forthwith on demand fully indemnify agreements of the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under Borrowers contained in this Section 5.3(a) shall survive satisfaction of the Liabilities and termination of this Agreement and the payment of all amounts payable hereunderAgreement.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.
Appears in 2 contracts
Sources: Credit Agreement (Hilbert Stephen C), Credit Agreement (Hilbert Stephen C)
Net Payments. (i) All payments made by the Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent and such Lender an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative AgentAgent and such Lender, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent or such Lender, as applicable, with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (ITC Holdings Corp.), Term Loan Credit Agreement (ITC Holdings Corp.)
Net Payments. (ia) All payments made by or on account of any obligation of any Loan Party under any Loan Document will be made without recoupment, setoff, counterclaim, or other defense. To the Borrower extent permitted by applicable law, all payments under this Agreement any Loan Document (including, without limitation, payments on account of principal and interest, and fees) shall be made by or on account of any obligation of any Loan Party free and clear of, of and without deduction or withholding for for, or on account of, any current Taxes. If any applicable law (as determined in the good faith discretion of an applicable withholding agent) requires an applicable withholding agent to deduct or future income withhold any Tax from any payment by or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at any obligation of any Loan Party under any Loan Document, then the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such applicable withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that agent shall make such deduction or withholding is required by any applicable law, as modified by and shall timely pay the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be full amount deducted or withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due in accordance with applicable law and, to the full amount required to extent such Tax is an Indemnified Tax, then the applicable Loan Party shall pay such additional amounts as may be deducted increased as necessary so that after such deduction or withheld withholding has been made (including the full amount of Taxes required such deductions and withholdings applicable to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender sums payable under this Section 5.3(a4.7(a));
(C) as promptly as possible thereafter, forward the applicable Recipient receives, in aggregate, an amount equal to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender sum it would have received had no such deduction or withholding been requiredmade. Each Loan Party shall deliver to the Agent within 30 days after it has made any such payment to the applicable Governmental Authority an original or certified receipt issued by such Governmental Authority (or other evidence reasonably satisfactory to Administrative Agent) evidencing the payment to such Governmental Authority of all amounts so required to be deducted or withheld from such payment.
(iiib) If the Borrower fails to The Loan Parties shall timely pay to the relevant Governmental Authority when due any Taxes that in accordance with applicable law, or at the option of Administrative Agent timely reimburse it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or payment of, any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failureOther Taxes.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.
Appears in 2 contracts
Sources: Credit Agreement (Owens-Illinois Group Inc), Credit Agreement (Owens-Illinois Group Inc)
Net Payments. (ia) All payments made by the Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (Ai) any net income taxes, taxes and franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (Bii) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), ) and (Ciii) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if . If any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent and such Lender an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative AgentAgent and such Lender, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) . If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent or such Lender, as applicable, with the documentation referred to in this Section 5.3(a)(ii)(C5.3(a) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) . The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (ITC Holdings Corp.), Term Loan Credit Agreement (ITC Holdings Corp.)
Net Payments. (ia) All payments made by or on behalf of the Borrower under this Agreement shall or any other Credit Document shall, except as otherwise required by law, be made free and clear of, and without deduction or withholding for or on account of, any current or future income income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (Ai) any net income taxes, taxes and franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), and (Cii) any such taxes imposed on the Administrative any Agent or any Lender as a result of a current or former connection between the Administrative such Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative such Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this AgreementAgreement or any other Credit Document); provided that, if any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) and are required to be withheld from any amounts payable to any Agent or any Lender hereunder, the amounts so payable to such Agent or such Lender shall be increased to the extent necessary to yield to such Agent or such Lender (Dafter payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement had such withholding not been required; provided, however, that the Borrower shall not be required to increase any such amounts payable to any Lender (x) if such Lender fails to comply with the requirements of paragraph (b), (c) or (d) of this Section 5.4, (y) that are with respect to U.S. federal withholding taxes imposed on amounts payable pursuant to FATCA or for the account (z) that are with respect to any U.S. federal withholding taxes imposed as a result of relocation of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new Lender’s lending office, office except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignmentsuch relocation, to receive additional amounts from the Borrower with respect to such withholding tax Non-Excluded Taxes pursuant to this Section 5.3(a), (“Taxes”) except to 5.4. Whenever any Non-Excluded Taxes are payable by the extent that such deduction or withholding is required by any applicable lawBorrower, as modified by promptly as possible thereafter the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable Borrower shall send to the Administrative Agent for its own account or any Lender hereunder, for the Borrower shall:
(A) promptly notify the Administrative Agent account of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) Lender, as promptly as possible thereafterthe case may be, forward to the Administrative Agent a certified copy of an original official receipt (or a certified copy), or other documentation reasonably evidence acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually acting reasonably) received by the Administrative Agent or such LenderBorrower showing payment thereof. In addition, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If if the Borrower fails to pay any Non-Excluded Taxes when due to the relevant Governmental Authority when due any Taxes that it was required appropriate taxing authority or fails to deduct or withhold under this Section 5.3(a) in respect of any payment remit to or for the benefit of the Administrative Agent the required receipts or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when other required to do sodocumentary evidence, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender Agents and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative any Agent or such any Lender as a result of any such failure.
(iv) . The Borrower’s obligations under agreements in this Section 5.3(a5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. For purposes of this Section 5.4, for the avoidance of doubt the term “Lender” shall include each Letter of Credit Issuer and L/C Participant.
(b) Notwithstanding Each Lender which is not a “United States person” as defined by Section 5.3(a7701(a)(30) of the Code (a “Non-U.S. Lender”) shall:
(i) deliver to the Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service (“IRS”) Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign corporation related to the Borrower (within the meaning of Section 864(d)(4) of the Code)), (y) IRS Form W-8BEN, Form W-8EXP or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the Borrower under this Agreement or (z) IRS Form W-8IMY and any attachments (including the forms described in subclauses (x) and (y) above, as applicable);
(ii) deliver to the Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 13.6 or a Lender pursuant to Section 13.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b) if such Participant or Lender is not a “United States person” as defined by Section 7701(a)(30) of the Code; provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver.
(c) If a payment made to a Lender under this Agreement may be subject to U.S. federal withholding tax under FATCA (which, solely for purposes of this Section 5.4(c), shall include any amendments thereto), such Lender shall deliver to the Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent, in each case as may be necessary for the Borrower or the Administrative Agent to comply with its obligations under FATCA, to determine that such Lender has or has not complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.
(d) Each Lender that is not a Non-U.S. Lender shall deliver to the Borrower and the Administrative Agent two IRS Forms W-9 (or substitute or successor form), properly completed and duly executed, certifying that such Lender is exempt from United States federal backup withholding tax (i) on or prior to the date such Lender becomes a party to this Agreement, (ii) on or before the date that such form expires or becomes obsolete, (iii) after the occurrence of a change in the Lender’s circumstances requiring a change in the most recent form previously delivered by it to the Borrower and the Administrative Agent, and (iv) from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent.
(e) The Borrower shall not be required to indemnify any Lender, or to pay any additional amounts to any Lender, in respect of U.S. Federal withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(aparagraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Lender became a party to this Agreement (or, in the case of a Participant, on the date such Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Non-U.S. LenderLender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, except if any such Revolving Credit Loans were assigned, participated participation or transferred transfer to such Non-U.S. Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Lender or Participant to comply with the provisions of paragraph (b), (c) or (d) above or (iii) any of the representations or certifications made by a Lender or Participant pursuant to paragraph (b) above, which are, at the request time of such payment, in effect and have not been superseded by subsequent representations or certificates, and the incorrectness of which necessarily results in the imposition of withholding tax pursuant to applicable law, are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such Lender became a party to this Agreement or such Participant purchased such participation.
(f) If the Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or Agent, as applicable, shall cooperate with such Borrower in challenging such taxes at such Borrower’s expense if so requested by such Borrower. If any Lender or Agent, as applicable, receives a refund of a tax for which a payment has been made by the consent Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Agent, as the case may be, is attributable to such payment made by the Borrower, then the Lender or Agent, as the case may be, shall reimburse the Borrower for such amount (together with any interest received from the relevant Governmental Authority thereon) as the Lender or Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor any Agent shall be obliged to disclose any information regarding its tax affairs or computations to the Borrower in connection with this paragraph (f) or were assignedany other provision of this Section 5.4.
(g) Each Lender represents and agrees that, participated or transferred on the Closing Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the Borrower has consented to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10arrangement prior thereto.
Appears in 2 contracts
Sources: Credit Agreement (Rockwood Holdings, Inc.), Credit Agreement (Rockwood Holdings, Inc.)
Net Payments. (i) All payments made by the Borrower under this Agreement and the Notes shall be made free without set-off or counterclaim and clear ofin such amounts as may be necessary in order that all payments, and without after deduction or withholding for or on account of, of any current present or future income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed other charges of whatsoever nature imposed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax government or any political subdivision or taxing authority thereof or therein including, without limitation, documentary and intangible taxes (other than any such connection arising solely from collectively, the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to shall not be less than the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required amounts otherwise specified to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails and the Note. Notwithstanding anything to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do socontrary contained herein, the Borrower shall forthwith not be liable for the payment of any tax on demand fully indemnify the Administrative or measured by net income imposed on Agent or such Lender for Lenders pursuant to the income tax laws of the United States or any incremental taxespolitical subdivision thereof. Borrower shall pay all Taxes prior to delinquency (and indemnify Agent and Lenders against any liability therefor) and shall promptly (and in any event not later than thirty (30) days thereafter) furnish to Agent any certificates, interest, costs or penalties that receipts and other documents which may become payable by be required (in the Administrative judgment of Agent) to establish any tax credit to which Agent or such Lender as a result and Lenders may be entitled. The obligations of such failure.
(iv) The Borrower’s obligations Borrower under this Section 5.3(a) Article 13.10 shall survive the termination of this Agreement and the payment repayment of all amounts payable hereunder.
(b) Notwithstanding Section 5.3(a)the Facility, the Borrower but such obligations shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable terminate as to any amount payable under this Agreement claim or liability for Taxes for which Borrower is responsible pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if this Article 13.10 on the same date that any such Revolving Credit Loans were assigned, participated claim or transferred to such Non-U.S. Lender at the request or with the consent liability for Taxes is barred by any applicable statute of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10limitations.
Appears in 2 contracts
Sources: Credit Agreement (Avatar Holdings Inc), Credit Agreement (Avatar Holdings Inc)
Net Payments. (i) All payments made by the Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), ) and (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent and such Lender an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative AgentAgent and such Lender, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent or such Lender, as applicable, with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (ITC Holdings Corp.), Term Loan Credit Agreement (ITC Holdings Corp.)
Net Payments. (ia) All payments made by the Borrower or on behalf of any Credit Party under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding for or on account of, of any current or future income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending officeTaxes, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is as required by Applicable Law. If any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent by or on behalf of any Credit Party under this Agreement or any Lender hereunderother Credit Document (as determined in the good faith discretion of the applicable withholding agent), then the Borrower shall:
(A) promptly notify applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the Administrative Agent of such requirement;
(B) promptly pay full amount deducted or withheld to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by in accordance with Applicable Law, and if such Tax is a Non-Excluded Tax, then the Borrower shall increase the amounts payable to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward applicable Recipient to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing extent necessary so that after such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any has been made (including such Taxes, will deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the full amount the Administrative Agent or such Lender sum it would have received had no such deduction or withholding been required.
(iii) If made. Whenever any Taxes are paid by a Credit Party pursuant to this Section 5.04(a), as soon as practicable thereafter, the Borrower fails shall send to the Administrative Agent the original or a certified copy of a receipt issued by the relevant Governmental Authority, a copy of the return reporting such payment, or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Borrower shall indemnify the Agents and the Lenders for any Non-Excluded Taxes (including Non- Excluded Taxes imposed or asserted on or attributable to amounts payable under this Section 5.04(a)) that are paid by any Agent or Lender or that are required to be withheld or deducted from a payment to any Agent or Lender and any reasonable expenses arising therefrom or with respect thereto, whether or not such Non-Excluded Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority, within ten (10) days after demand therefor. A certificate as to the amount of such payment or liability delivered to the Borrower by an Agent or Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority when due any Taxes that it was required to deduct in accordance with Applicable Law, or withhold under this Section 5.3(a) in respect of any payment to or for at the benefit option of the Administrative Agent or Agent, shall timely reimburse it for the payment of any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to Other Taxes. The agreements in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a5.04(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(bi) Notwithstanding Section 5.3(aEach Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by Applicable Law or reasonably requested by the Borrower or Administrative Agent as will permit such payments to be made without withholding or at a reduced rate; provided, that such Lender is legally entitled to complete, execute and deliver such documentation. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Person that shall become a Participant pursuant to Section 13.06 or a Lender pursuant to Section 13.06 shall, upon the effectiveness of the related transfer, be required to indemnify or pay provide all the forms and statements required pursuant to this Section 5.04(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding any additional amounts other provision of this paragraph, no Lender shall be required to deliver any form (other than such documentation required by Sections 5.04(b)(ii)(A)-(C) and (iii)) that in respect of withholding tax applicable such Lender’s reasonable judgment would subject such Lender to any amount payable material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing,
(A) any Lender that is a “United States Person” as defined in Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent on or about the date on which such Lender becomes a Lender under this Agreement pursuant (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Lender that is not a “United States Person” as defined in Section 5.3(a7701(a)(30) above to any of the Code (a “Non-U.S. Lender”) shall, except if any to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such Revolving Credit Loans were assigned, participated number of copies as shall reasonably be requested) on or transferred to about the date on which such Non-U.S. Lender at becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request or with the consent of the Borrower or were assignedthe Administrative Agent), participated whichever of the following is applicable:
(1) in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed copies of IRS Form W-8BEN or transferred IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2) executed copies of IRS Form W-8ECI;
(3) in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit L-1 to the effect that such Non-U.S. Lender following is not a “bank” within the occurrence meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” within the meaning of Section 957 of the Code related to the Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and during (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or
(4) to the continuance extent a Non-U.S. Lender is not the beneficial owner, executed copies of an Event IRS Form W-8IMY, accompanied by IRS Form W- 8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Default Exhibit L-2 or Exhibit L-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Non-U.S. Lender is a partnership and one or more direct or indirect partners of such Non-U.S. Lender are claiming the portfolio interest exemption, such Non-U.S. Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such direct and indirect partner;
(C) Any Non-U.S. Lender shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made;
(iii) Without limiting the generality of the foregoing, if a payment made to a Recipient under any Credit Document would be subject to United States federal withholding tax imposed by FATCA if such Recipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Recipient shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i), of the Code and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Recipient has complied with such Recipient’s obligations under FATCA or to determine the amount to deduct and withhold from such payment under FATCA, if any. Solely for the purposes of this clause (iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iv) Each Recipient agrees that if any form or certification it previously delivered pursuant to this Section 10.1 5.04(b) expires or becomes obsolete or inaccurate in any material respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(c) If any Lender or any Agent determines, in its sole discretion exercised in good faith, that it has received a refund of a Tax for which it has been indemnified by the Borrower pursuant to this Section 5.04 (including by the payment of additional amounts by the Borrower pursuant to this Section 5.04), then such Lender or such Agent, as the case may be, shall reimburse the Borrower for such amount (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 5.04 with respect to the Tax giving rise to such refund), net of all out-of-pocket expenses of such Agent or such Lender (including any Taxes imposed on the receipt of such refund) and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that the Borrower, upon the request of such Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Agent or such Lender in the event such Agent or such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (c), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (c) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any Agent or any Lender to make available its tax returns (or any other information relating to its Taxes which it deems confidential) to the Borrower or any other Person.
(d) Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Non-Excluded Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Non- Excluded Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 13.06 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (d).
(e) Each party’s obligations under this Section 5.04 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Credit Document.
Appears in 2 contracts
Sources: Credit Agreement (Tiga Acquisition Corp.), Credit Agreement (Tiga Acquisition Corp.)
Net Payments. (ia) All payments made by or on behalf of any Borrower to or on behalf of any Lender or Agent hereunder or under any Loan Document will be made without recoupment, setoff, counterclaim, or other defense. To the Borrower extent permitted by applicable law, all payments hereunder and under this Agreement any of the Loan Documents (including, without limitation, payments on account of principal and interest, and fees) to, or on behalf, of any Person shall be made by or on behalf of Borrowers free and clear of, of and without deduction or withholding for for, or on account of, any current or future income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, Taxes whatever nature now or hereafter imposed, levied, collected, withheld or assessed imposed by any Governmental Authority.
(b) If any Borrower makes any payment hereunder or under any Loan Document in respect of which it is required by law to deduct or withhold any Taxes subject to Section 4.7(d) below, excluding (A) such Borrower shall increase the payment hereunder or under any such Loan Document such that the net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on amount received by the Lender or Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or equals net amount that would have been received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that had no such deduction or withholding is required by occurred. To the extent any applicable lawBorrower withholds any Taxes on payments hereunder or under any Loan Document, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly shall pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld to the relevant taxation or other Governmental Authority within the time allowed for such payment under applicable law and shall deliver to Administrative Agent within 30 days after it has made such payment to the applicable authority a receipt issued by such authority (including or other evidence satisfactory to Administrative Agent) evidencing the full amount payment to such authority of Taxes all amounts so required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent such payment or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward other evidence of payment that is reasonably satisfactory to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.
Appears in 2 contracts
Sources: Credit Agreement (Crown Holdings Inc), Credit Agreement (Crown Holdings Inc)
Net Payments. (ia) All payments made by the Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (Ai) any net income taxes, taxes and franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (Bii) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), ) and (Ciii) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if . If any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent and such Lender an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative AgentAgent and such Lender, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) . If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent or such Lender, as applicable, with the documentation referred to in this Section 5.3(a)(ii)(C5.3(a) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) . The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.of
Appears in 1 contract
Net Payments. (ia) All payments made by Borrower hereunder or under any Loan Document will be made without setoff, counterclaim or other defense. Except as provided in Section 4.7(d), all payments hereunder and under any of the Borrower under this Agreement Loan Documents (including, without limitation, payments on account of principal and interest and fees) shall be made by Borrower free and clear of, of and without deduction or withholding for or on account of, of any current present or future income tax, duty, levy, impost, assessment or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, charge of whatever nature now or hereafter imposed, levied, collected, withheld or assessed imposed by any Governmental Authority, but excluding therefrom (Ai) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes a tax imposed on the Administrative Agent overall net income (including a franchise tax based on net income) of the lending office of the Lender in respect of which the payment is made by the jurisdiction in which the Lender is incorporated or any Lenderthe jurisdiction (or political subdivision or taxing authority thereof) in which its lending office is located, (Bii) in the case of any Lender that is not a United States person (as such taxes attributable to the failure term is defined in Section 7701(a)(30) of the Administrative Agent or any Lender to Code) and that does not comply with Section 5.3(c4.7(d), any taxes imposed by the United States by means of withholding at the source unless such withholding results from a change in applicable law, treaty or regulations or the interpretation or administration thereof (Cincluding, without limitation, any guideline or policy not having the force of law) by any authority charged with the administration thereof subsequent to the date such Lender becomes a Lender with respect to the Loan or portion thereof affected by such change and (iii) any such tax imposed on or measured by the overall net income (including a franchise tax based on net income, but excluding any taxes imposed on by the Administrative Agent or any Lender as a result United States by means of withholding at the source) of a current Lender or former connection between an office or branch thereof by the Administrative Agent or such Lender and the jurisdiction United States of the Governmental Authority imposing such tax America or any political subdivision or taxing authority thereof or therein (such tax or taxes, other than excluded tax or taxes, being herein referred to as "Tax" or "Taxes"). If Borrower is required by law to make any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority Taxes from any payment due hereunder or under any of the Loan Documents, then in effect.
(ii) Subject the amount payable will be increased to Section 5.3(b)such amount which, if any after deduction from such increased amount of all such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxestherefrom, will equal not be less than the full amount the Administrative Agent or such Lender would have received due and payable hereunder had no such deduction or withholding been required.
(iiib) If Borrower makes any payment hereunder or under any of the Borrower fails Loan Documents in respect of which it is required by law to make any deduction or withholding of any Taxes, it shall pay the full amount to be deducted or withheld to the relevant Governmental Authority when due any Taxes that taxation or other authority within the time allowed for such payment under applicable law and shall deliver to the Lenders within 30 days after it was has made such payment to the applicable authority a receipt issued by such authority evidencing the payment to such authority of all amounts so required to deduct be deducted or withhold withheld from such payment.
(c) Without prejudice to the provisions of Section 4.7(a), if any Lender, or Agent on its behalf, is required by law to make any payment on account of Taxes on or in relation to any such received or receivable tax hereunder or under any of the Loan Documents by such Lender, or Agent on its behalf, or any liability for Tax in respect to any such payment is imposed, levied or assessed against any Lender or Agent on its behalf, Borrower will promptly indemnify such person against such Tax payment or liability, together with any interest, penalties and expenses (including counsel fees and expenses) payable or incurred in connection therewith, including any tax of any Lender arising by virtue of payments under this Section 5.3(a) 4.7(c), computed in respect of any payment a manner consistent with this Section 4.7(c). A certificate as to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result amount of such failurepayment by such Lender, or Agent on its behalf, absent manifest error, shall be final, conclusive and binding upon all parties hereto for all purposes.
(ivd) The Borrower’s obligations under this Each Lender that is not a United States person (as such term is defined in Section 5.3(a7701(a)(30) shall survive of the termination Code) agrees to deliver to Borrower and Agent on or prior to the Initial Borrowing Date, or in the case of this Agreement and the payment a Lender that is an Assignee of all amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable an interest under this Agreement pursuant to Section 5.3(a) above 3.7 or 12.8 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment), on the date of such assignment to such Lender, together with any other certificate or statement of exemption required under the Code to establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to any Non-U.S. payments to such Lender, except (i) two accurate and complete original signed copies of IRS Form 4224 or 1001 (or successor forms) certifying to such Lender's entitlement to a complete exemption from United States withholding tax with respect to payments to be made under this Agreement and under any Note, or (ii) if the Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code, (x) a certificate substantially in the form of Exhibit 4.7(d) (any such Revolving Credit Loans were assignedcertificate, participated a "Section 4.7(d)(ii) Certificate") and (y) two accurate and complete original signed copies of IRS Form W-8 (or transferred successor form) certifying to such Non-U.S. Lender's entitlement to a complete exemption from United States withholding tax with respect to payments of interest to be made under this Agreement and under any Note. In addition, each Lender at agrees that from time to time after the request Initial Borrowing Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to Borrower and Agent two new accurate and complete original signed copies of IRS Form 4224 or 1001, or Form W-8 and a Section 4.7(d)(ii) Certificate, as the case may be, and such other forms as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding Tax with respect to payments under this Agreement and any Note, or it shall immediately notify Borrower and Agent of its inability to deliver any such form or certificate. Notwithstanding anything to the consent contrary contained in Section 4.7(a), but subject to Section 12.8(c) and the immediately succeeding sentence, (x) Borrower shall be entitled, to the extent it is required to do so by law, to deduct or withhold income or similar Taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein) from interest, fees or other amounts payable hereunder for the account of any Lender which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for United States Federal income tax purposes to the extent that such Lender has not provided to Borrower IRS Forms that establish a complete exemption from such deduction or were assignedwithholding and (y) Borrower shall be obligated pursuant to Section 4.7(a) hereof to gross-up payments to be made to a Lender in respect of income or similar Taxes imposed by the United States unless (I) upon timely notice from the Borrower, participated such Lender has not provided to Borrower the IRS Forms required to be provided to Borrower pursuant to this Section 4.7(d), or transferred (II) in the case of a payment, other than interest, to a Lender described in clause (ii) above, to the extent that such Non-U.S. IRS Forms do not establish a complete exemption from withholding of such Taxes. Notwithstanding anything to the contrary contained in the preceding sentence or elsewhere in this Section 4.7 and except as set forth in Section 12.8(c), Borrower agrees to pay additional amounts and to indemnify each Lender following in the manner set forth in Section 4.7(a) (without regard to the identity of the jurisdiction requiring the deduction or withholding) in respect of any amounts deducted or withheld by it as described in the immediately preceding sentence as a result of any changes after the Initial Borrowing Date in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of income or similar Taxes.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of and during any event or the continuance existence of an Event any condition that would cause Borrower to make a payment in respect of Default any Taxes to such Lender pursuant to Section 10.1 4.7(a) or 10a payment in indemnification for any Taxes pursuant to Section 4.7(c), it will use reasonable efforts to make, fund or maintain the Loan (or portion thereof) of such Lender with respect to which the aforementioned payment is or would be made through another lending office of such Lender if as a result thereof the additional amounts which would otherwise be required to be paid by such Borrower in respect of such Loans (or portions thereof) or participation in Letters of Credit pursuant to Section 4.7(a) or Section 4.7(c) would be materially reduced, and if, as determined by such Lender, in its reasonable discretion, the making, funding or maintaining of such Loans or participation in Letters of Credit (or portions thereof) through such other lending office would not otherwise materially adversely affect such Loans or such Lender. Borrower agrees to pay all reasonable expenses incurred by any Lender in utilizing another lending office of such Lender pursuant to this Section 4.7(e).
Appears in 1 contract
Net Payments. (i) All payments made by the Borrower or on account of any Credit Party under this Agreement any Credit Document shall be made free and clear of, and without deduction or withholding for for, any Taxes, except as required by applicable law (as determined in the good- faith discretion of the withholding agent). If any Indemnified Taxes or Other Taxes are required to be withheld or deducted from such payments, then the Credit Parties jointly and severally agree that (i) to the extent such deduction or withholding is on account ofof an Indemnified Tax or Other Tax, any current the sum payable by the Credit Parties shall be increased as necessary so that after making all required deductions or future income withholding (including deduction or other taxeswithholdings applicable to additional sums payable under this Section 4.01), leviesthe Administrative Agent or Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, imposts, duties, charges, fees, (ii) the applicable withholding agent will make such deductions or withholdings, now and (iii) the applicable withholding agent shall timely pay the full amount deducted or hereafter imposedwithheld to the relevant Governmental Authority in accordance with applicable law. In addition, levied, collected, withheld the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law. As soon as practicable after any payment of Indemnified Taxes or assessed by any Other Taxes to a Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party, a copy of the return reporting such payment or any Lender, (B) any other evidence of such taxes attributable payment reasonably satisfactory to the failure of Administrative Agent. The Credit Parties jointly and severally agree to indemnify and hold harmless the Administrative Agent or any Lender to comply with Section 5.3(c)and each Lender, (C) any such taxes imposed on and reimburse the Administrative Agent and each Lender, within ten (10) days of written request therefor, for the amount of any Indemnified Taxes (including any Indemnified Taxes imposed on amounts payable under this Section 4.01) payable or any Lender as a result of a current or former connection between paid by the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld or deducted from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition and any Other Taxes, and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to which the Borrower by a Lender or the Issuing Bank (with a copy to the Administrative Agent Agent), or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent on its own behalf or such Lenderon behalf of a Lender or the Issuing Bank, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been requiredshall be conclusive absent manifest error.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.
Appears in 1 contract
Sources: Abl Credit Agreement (Performance Sports Group Ltd.)
Net Payments. (ia) All Subject to the following sentence, all payments made by the Borrower or on behalf of any Credit Party under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding Taxes (Aincluding Other Taxes) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction any payment made by or withholding is required by any applicable law, as modified by the administrative practice on account of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if obligation of the Credit Parties. If any such Taxes are required under Applicable Law (as determined in the good faith discretion of an applicable withholding agent) to be withheld from any amounts payable to the Administrative Agent or any Lender hereunderunder this Agreement, the Borrower shall:
(A) promptly notify Credit Parties shall be entitled to make such deduction or withholding and shall timely pay the Administrative Agent of such requirement;
(B) promptly pay full amount deducted or withheld to the relevant Governmental Authority when due in accordance with applicable law, and if such Taxes are not Excluded Taxes (“Non-Excluded Taxes”), shall increase the full amount required amounts payable to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative such Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent extent necessary (after payment of all Non-Excluded Taxes, including any such Non-Excluded Taxes imposed on additional amounts payable hereunder) so that the applicable Recipient receives an official receipt (or a certified copy), or other documentation reasonably acceptable amount equal to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender sum it would have received had no such deduction or withholding been required.
made. Whenever any Non-Excluded Taxes are paid by any Credit Party, as soon as practicable thereafter, such Credit Party shall send to the Administrative Agent for its own account or for the account of such Secured Party, as the case may be, a certified copy of an original official receipt (iiior other evidence acceptable to such Lender, acting reasonably) If the Borrower received by such Credit Party showing payment thereof. Without duplication of any other obligation contained in this Agreement, if such Credit Party fails to pay any Non-Excluded Taxes when due to the appropriate Governmental Authority, such Credit Party shall indemnify the Agents and the Lenders for any such Non-Excluded Taxes (including any Non-Excluded Taxes imposed or asserted on or attributable to amounts payable under this Section 5.04) payable or paid by such Agent or Lender or that are required to be withheld or deducted from a payment to such Agent or Lender and any reasonable expenses arising therefrom or with respect thereto, whether or not such Non-Excluded Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Credit Party by a Lender (with a copy to the Agent) or by the Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. In addition, the Credit Parties shall pay any Other Taxes to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under in accordance with applicable law. The agreements in this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a5.04(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments under any Credit Document shall deliver to the Administrative Borrower and to the Administrative Agent, whenever reasonably requested by the Administrative Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Administrative Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Administrative Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Administrative Borrower or the Administrative Agent as will enable the Administrative Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 5.3(a5.04(b)(i)(A), the Borrower Section 5.04(b)(ii), and Section 5.04(b)(iii) below) shall not be required to indemnify if in the Lender’s reasonable judgment such completion, execution or pay any additional amounts in respect of withholding tax applicable submission would subject such Lender to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at . Without limiting the request or with the consent generality of the Borrower or were assigned, participated or transferred to such Non-U.S. foregoing:
(i) Each Lender following that is not a “United States person” within the occurrence meaning of and during Section 7701(a)(30) of the continuance of an Event of Default pursuant to Section 10.1 or 10.Code (a “
Appears in 1 contract
Net Payments. (i) All payments under the Guarantee shall be made by the Borrower under this Agreement shall be made free and clear ofGuarantor without withholding or deduction at source for, and without deduction or withholding for or on account of, any current present or future income or other taxes, levies, impostsfees, duties, chargesassessments or governmental charges of whatever nature imposed or levied by or on behalf of Bermuda or any other jurisdiction in which the Guarantor is organized or resident for tax purposes (each, a "taxing jurisdiction") or any political subdivision or taxing authority thereof or therein, unless such taxes, fees, deductions duties, assessments or withholdings, now or hereafter imposed, levied, collected, governmental charges are required to be withheld or assessed deducted by any Governmental Authority, excluding (Ai) any net income taxes, franchise taxes the laws (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (Bregulations or ruling promulgated thereunder) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the taxing jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including a holding by a court of competent jurisdiction or by a taxing authority in a taxing jurisdiction or any political subdivision thereof). If any withholding or deduction at source is required, the Guarantor shall, subject to the limitations and exceptions set forth below, pay to the Holder of any such Security such additional amounts as may be necessary so that every net payment under the Guarantee made to such Holder, after such withholding or deduction, shall not be less than the amount provided for in the Guarantee and this Indenture to be then due and payable (the "Additional Amounts"); provided, that the Guarantor shall not be required to make payment of such Additional Amounts for or on account of:
(1) any tax, fee, duty, assessment or governmental charge of whatever nature which would not have been imposed but for the fact that such Holder or the beneficial owner of such Security: (A) was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the relevant taxing jurisdiction or any political subdivision thereof or therein or otherwise had some connection with the relevant taxing jurisdiction or any political subdivision thereof or therein other than any such connection arising solely from by reason of the Administrative Agent mere ownership of, or such Lender having executed, delivered or performed its obligations or received a receipt of payment under, such Security or enforcedthe Guarantee; (B) presented the related Security for payment in the relevant taxing jurisdiction or any political subdivision thereof, this Agreementunless such Security could not have been presented for payment elsewhere; or (C) presented such Security more than thirty (30) days after the date on which the payment in respect of such Security first became due and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending officepayable, except to the extent that the Holder or beneficial owner would have been entitled to such Lender Additional Amounts if it had presented such Security for payment on any day within such period of thirty (30) days;
(2) any estate, inheritance, gift, sale, transfer, personal property or similar tax, fee, duty, assessment or other governmental charge; or
(3) any tax, fee, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of such Security to comply, within 90 days, with any reasonable request by the Guarantor addressed to the Holder or such beneficial owner (A) to provide information concerning the nationality, residence or identity 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 statute, treaty, regulation or administrative practice of the relevant taxing jurisdiction or any political subdivision thereof or therein as a precondition to exemption from all or part of such tax, fee, duty, assessment or other governmental charge; nor shall Additional Amounts be paid with respect to any payment under the Guarantee to any Holder where the beneficial owner of the related Security is a fiduciary or partnership to the extent such payment would be required by the laws of the relevant taxing jurisdiction (or its assignor, if anyany political subdivision or relevant taxing authority thereof or therein) was entitled, at to be included in the time of designation income for tax purposes of a new lending office or assignment, to receive additional amounts from the Borrower beneficiary with respect to such fiduciary or partner of such partnership who would not have been entitled to such Additional Amounts had it been the Holder of the Security. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium, interest or any other amounts on, or in respect of, any Security of any series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided by the terms of such series established hereby or pursuant hereto to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall not be construed as excluding the payment of Additional Amounts in those provisions hereof where such express mention is not made. Except as otherwise provided in or pursuant to this Indenture or the Securities of the applicable series or the related Guarantee, at least 10 days prior to the first Interest Payment Date with respect to a series of Securities (or if the Securities of such series shall not bear interest prior to Maturity, the first day on which a payment of principal is made), and at least 10 days prior to each date of payment of principal or interest if there has been any change with respect to the matters set forth in the below mentioned Guarantor's Officer's Certificate, the Guarantor shall furnish to the Trustee and the principal Paying Agent or Paying Agents, if other than the Trustee, a Guarantor's Officer's Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and premium, if any, interest or any other amounts on the Securities of such series shall be made to Holders of Securities of such series without withholding for or on account of any tax, fee, duty, assessment or other governmental charge described in this Section 14.3. If any such withholding shall be required, then such Guarantor's Officer's Certificate shall specify by jurisdiction in which the Holders of Securities are resident for tax purposes the amount, if any, required to be withheld on such payments to such Holders of Securities, and the Guarantor agrees to pay to the Trustee or such Paying Agent the Additional Amounts required by this Section 14.3. The Guarantor covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Guarantor's Officer's Certificate furnished pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect14.3.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.
Appears in 1 contract
Net Payments. (ia) All payments made by the Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (Ai) any net income taxes, taxes and franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (Bii) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), ) and (Ciii) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if . If any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent and such Lender an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative AgentAgent and such Lender, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) . If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent or such Lender, as applicable, with the documentation referred to in this Section 5.3(a)(ii)(C5.3(a) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) . The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of the Revolving Credit Loans and all other amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.
Appears in 1 contract
Net Payments. (i) All payments made by the Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), ) and (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of the Revolving Credit Loans and the Swingline Loans and all other amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans or Swingline Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.the
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Net Payments. (i) All payments made by the a Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (Ai) any net income taxes, taxes and franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, Lender and (Bii) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”"TAXES") except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if . If any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the relevant Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the such Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent and such Lender an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative AgentAgent and such Lender, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for Lender (free and clear of any such Taxes, whether assessed against such Borrower, the Administrative Agent or such Lender) will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iiiii) If the a Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent or such Lender, as applicable, with the documentation referred to in Section 5.3(a)(ii)(C5.3(a) when required to do so, the such Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iviii) The Each Borrower’s 's obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of the Revolving Credit Loans and all other amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the a Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the such Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.5.
(c) Each Non-U.S. Lender shall:
(i) deliver to each Borrower and the Administrative Agent two copies of either (x) in the case of a Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of "portfolio interest", United States Internal Revenue Service Form W-8BEN, (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of a Borrower and is not a controlled foreign corporation related to such Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by such Borrower under this Agreement;
(ii) deliver to each Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to such Borrower; and
(iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested in writing by the Borrowers or the Administrative Agent; unless, in any such case, any change in treaty, law or regulation, has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises each Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 12.6 or a Lender pursuant to Section 12.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.3(c), provided that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased.
(d) If the Borrowers determine in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with the Borrowers in challenging such taxes at the Borrowers' expense if so requested by the Borrowers. If any Lender or the Administrative Agent, as applicable, receives a refund of, or credit for, a Tax for which a payment has been made by a Borrower pursuant to this Agreement, which refund or credit in the good faith judgment of such Lender or the Administrative Agent, as the case may be, is attributable to such payment made by such Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse that Borrower for such amount as the Lender or the Administrative Agent, as the case may be, determines to be the proportion of the refund or credit as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund or credit that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither such Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the Borrowers in connection with this paragraph (d) or any other provision of this Section 5.3.
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Net Payments. (i) All payments of principal of and premium, if any, interest and any other amounts on, or in respect of, the Securities of any series shall be made by the Borrower under this Agreement shall be made free and clear ofGuarantor without withholding or deduction at source for, and without deduction or withholding for or on account of, any current present or future income or other taxes, levies, impostsfees, duties, chargesassessments or governmental charges of whatever nature imposed or levied by or on behalf of The Netherlands (the "taxing jurisdiction") or any political subdivision or taxing authority thereof or therein, unless such taxes, fees, deductions duties, assessments or withholdings, now or hereafter imposed, levied, collected, governmental charges are required to be withheld or assessed deducted by any Governmental Authority, excluding (Ai) any net income taxes, franchise taxes the laws (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (Bregulations or ruling promulgated thereunder) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the taxing jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including, without limitation, a holding by a court of competent jurisdiction or by a taxing authority in a taxing jurisdiction or any political subdivision thereof). If a withholding or deduction at source is required, the Guarantor shall, subject to certain limitations and exceptions set forth below, pay to the Holder of any such Security such additional amounts as may be necessary so that every net payment of principal, premium, if any, interest or any other amount made to such Holder, after such withholding or deduction, shall not be less than the amount provided for in such Security and this Indenture to be then due and payable; provided, however, that the Guarantor shall not be required to make payment of such additional amounts for or on account of:
(a) any tax, fee, duty, assessment or governmental charge of whatever nature which would not have been imposed but for the fact that such Holder: (A) was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the relevant taxing jurisdiction or any political subdivision thereof or otherwise had some connection with the relevant taxing jurisdiction other than any such connection arising solely from by reason of the Administrative Agent mere ownership of, or such Lender having executed, delivered or performed its obligations or received a receipt of payment under, such Security; (B) presented such Security for payment in the relevant taxing jurisdiction or enforcedany political subdivision thereof, this Agreementunless such Security could not have been presented for payment elsewhere; or (C) presented such Security more than thirty (30) days after the date on which the payment in respect of such Security first became due and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending officeprovided for, whichever is later, except to the extent that the Holder would have been entitled to such Lender additional amounts if it had presented such Security for payment on any day within such period of thirty (30) days;
(b) any estate, inheritance, gift, sale, transfer, personal property or its assignorsimilar tax, assessment or other governmental charge;
(c) any tax assessment or other governmental charge imposed on a payment that is required to be made pursuant to any European Union Directive on the taxation of savings implementing the conclusions of the ECOFIN council meetings of November 26 - 27, 2000 and June 3, 2003 or any law implementing or complying with, or introduced in order to confirm such directive;
(d) 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 such Security to comply with any reasonable request by the Guarantor addressed to the Holder within 90 days of such request (A) to provide information concerning the nationality, residence or identity 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 statute, treaty, regulation or administrative practice of the relevant taxing jurisdiction or any political subdivision thereof as a precondition to exemption from all or part of such tax, assessment or other governmental charge; or
(e) any combination of items (a), (b) (c) and (d); nor shall additional amounts be paid with respect to any payment of the principal of, or premium, if any, interest or any other amounts on, any such Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such Security to the extent such payment would be required by the laws of the relevant taxing jurisdiction (or any political subdivision or relevant taxing authority thereof or therein) was entitled, at to be included in the time of designation income for tax purposes of a new lending office beneficiary or assignment, to receive additional amounts from the Borrower partner or settlor with respect to such withholding tax fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had it been the Holder of the Security. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium, interest or any other amounts on, or in respect of, any Security of any series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of additional amounts provided by the terms of such series established hereby or pursuant hereto to the extent that, in such context, additional amounts are, were or would be payable in respect thereof pursuant to such terms, and express mention of the payment of additional amounts (if applicable) in any provision hereof shall not be construed as excluding the payment of additional amounts in those provisions hereof where such express mention is not made. Except as otherwise provided in or pursuant to this Section 5.3(aIndenture or the Securities of the applicable series, at least 10 days prior to the first Interest Payment Date with respect to a series of Securities (or if the Securities of such series shall not bear interest prior to Maturity, the first day on which a payment of principal is made), (“Taxes”) except and at least 10 days prior to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice each date of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify principal or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.interest if
Appears in 1 contract
Net Payments. (ia) All payments made by the US Borrower and the UK Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (Ai) any net income taxes, taxes and franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, Lender and (Bii) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if . If any such Taxes non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower amounts so payable to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward shall be increased to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable extent necessary to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a "Non-U.S. Lender") if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, in addition as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the payment to which the Administrative Agent for its own account or for the account of such Lender is otherwise entitled under this AgreementLender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such additional amount as is necessary to ensure that the net amount actually Lender, acting reasonably) received by such US Borrower or UK Borrower showing payment thereof. If the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, such Lender, after deduction US Borrower or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the UK Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such any Lender as a result of any such failure.
(iv) . The Borrower’s obligations under agreements in this Section 5.3(a5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Notwithstanding Each Non-U.S. Lender shall:
(i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 5.3(a871(h) or 881(c) of the Code with respect to payments of "portfolio interest", United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement;
(ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and
(iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b), provided that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased.
(c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender at became a party to this Agreement (or, in the request or with case of a Participant that is not organized under the consent laws of the United States of America or a state thereof (a "Non-U.S. Participant"), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or were assignedthe UK Borrower, participated or transferred (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non-U.S. Lender following or Non-U.S. Participant to comply with the occurrence provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made.
(d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if:
(i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender;
(ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or
(iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; except to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the date of this Agreement.
(e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower's or UK Borrower's expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither the Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (d) or any other provision of this Section 5.4.
(f) Each Lender represents and agrees that, on the date hereof and at all times during the continuance term of an Event this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of Default pursuant the Code and the regulations thereunder) with respect to Section 10.1 or 10the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.
Appears in 1 contract
Net Payments. (a) authority thereof, other than any tax on or measured by the net income of a Bank pursuant to the income tax laws of the jurisdictions where such Bank's principal or lending office is located (collectively "Taxes")) shall not be less than the amounts otherwise specified to be paid under this Agreement and/or any other Credit Document. If the Borrower or the Company is required by law to make any deduction or withholding on account of Taxes from any payment due hereunder or under the other Credit Documents, then (i) All payments made the Borrower shall timely remit such Taxes to the governmental authority imposing the same and (ii) the amount payable hereunder or under the applicable Credit Documents will be increased to such amount which, after deduction from such increased amount of all amounts required to be deducted or withheld therefrom, will not be less than the amount otherwise due and payable.
(b) Without prejudice to the provisions of clause (a) of this Section 3.04, if any Bank or the Agent is required to make any payment on account of Taxes, the Borrower will, promptly indemnify such person against such Taxes, together with any interest, penalties and expenses payable or incurred in connection therewith. The Borrower shall also reimburse each Bank, upon the written request of such Bank, for taxes imposed on or measured by the Borrower net income of such Bank pursuant to the laws of the jurisdiction in which the principal office or lending office of such Bank is located or under the laws of any political subdivision or taxing authority of any such jurisdiction as such Bank shall determine are payable by such Bank in respect of Taxes paid to or on behalf of such Bank pursuant to this Section 3.04. For purposes of this Section 3.04, the term "Taxes" includes interest, penalties and expenses payable or incurred in connection therewith. A certificate as to any additional amounts payable to a Bank under this Agreement shall Section 3.04 submitted to the Borrower by such Bank shall, absent manifest error, be made free final, conclusive and clear of, and without binding for all purposes upon all parties hereto. With respect to each deduction or withholding for or on account ofof any Taxes, the Borrower shall promptly furnish to each Bank such certificates, receipts and other documents as may be required (in the judgment of such Bank) to establish any current tax credit to which such Bank may be entitled.
(i) Each Bank that is organized under the laws of any jurisdiction other than the United States or future income any State thereof (including the District of Columbia) (a "Foreign Bank") agrees to furnish to the Borrower and the Agent, prior to the date it receives any payment under this Agreement or other taxesCredit Documents, levies, imposts, duties, charges, fees, deductions two signed copies of either U.S. Internal Revenue 24 -18- Service Form 4224 or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent U.S. Internal Revenue Service Form 1001 or any Lender, successor form thereto (B) any wherein such taxes attributable Bank claims entitlement to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely complete exemption from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed tax on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request interest paid by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(ahereunder), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject In addition, each Foreign Bank agrees to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable provide subsequently to the Administrative Borrower and the Agent additional signed copies of Form 4224 or Form 1001 or any Lender hereunder, the Borrower shall:
successor forms thereto (A) promptly notify the Administrative Agent wherein such Bank claims entitlement to a complete exemption from or reduced rate of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount U.S. federal withholding tax on interest paid by the Borrower hereunder) as may be reasonably requested in writing by the Borrower or the Agent. A Foreign Bank shall be required to the Administrative Agent or such Lender furnish a form under this Section 5.3(a));
(C3.04(c)(ii) as promptly as possible thereafter, forward only if it is entitled to the Administrative Agent claim an official receipt (exemption from or a certified copy)reduced rate of withholding tax under applicable law. A Bank that is not entitled to claim an exemption from or a reduced rate of withholding under applicable law at the time that a request to provide forms is received from the Borrower or the Agent, or other documentation shall so inform the Borrower and the Agent in writing. In such event the Borrower shall be entitled to designate a replacement bank that is reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure provided that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required entitled to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at replace the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10Agent.
Appears in 1 contract
Net Payments. For purposes of this Section 4.4, the term “Requirements of Law” includes FATCA.
(ia) All Any and all payments made by or on behalf of the Borrower or any Guarantor under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding for or on account of, any current Taxes; provided that if the applicable Withholding Agent shall be required by applicable Requirements of Law to deduct or future income or other taxeswithhold any Taxes from such payments, levies, imposts, duties, charges, fees, then (i) the applicable Withholding Agent shall make such deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender withholdings as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request are reasonably determined by the Borrower under Section 12.7) or designates a new lending office, except applicable Withholding Agent to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is be required by any applicable lawRequirement of Law, as modified by (ii) the administrative practice of any applicable Withholding Agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority then within the time allowed and in effect.
accordance with applicable Requirements of Law, and (iiiii) Subject to Section 5.3(b), if any such Taxes are the extent withholding or deduction is required to be withheld from made on account of Indemnified Taxes or Other Taxes, the sum payable by the Borrower or such Guarantor shall be increased as necessary so that after all required deductions and withholdings have been made (including deductions or withholdings of Indemnified Taxes or Other Taxes applicable to additional sums payable under this Section 4.4) the Administrative Agent, the Collateral Agent or the applicable Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made. Without duplication, after any amounts payable payment of Taxes by any Credit Party or the Administrative Agent to a Governmental Authority as provided in this Section 4.4, the Borrower shall deliver to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent shall deliver to the Borrower, as the case may be, a copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by laws to report such payment or other evidence of such requirement;payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.
(Bb) promptly The Borrower shall timely pay to the relevant Governmental Authority when due in accordance with applicable law, or at the full amount required to be deducted option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes (whether or withheld not such Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority).
(including c) The Borrower shall indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender within 15 Business Days after written demand therefor, for the full amount of any Indemnified Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to Other Taxes imposed on the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Collateral Agent or such Lender, as the case may be (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.4), and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority, provided, however, the right to indemnification shall be subject to such notice requirements of Section 2.12. A certificate setting forth in addition reasonable detail the basis and calculation of the amount of such payment or liability delivered to the payment to which Borrower by a Lender, the Administrative Agent or the Collateral Agent (as applicable) on its own behalf or on behalf of a Lender shall be conclusive absent manifest error.
(d) Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Lender is otherwise entitled under this Agreement(but only to the extent that any Credit Party has not already indemnified the Administrative Agent for such Taxes and without limiting the obligation of the Credit Parties to do so) and (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 12.6(c) relating to the maintenance of a Participant Register, such additional amount as is necessary to ensure in either case, that the net amount actually received are payable or paid by the Administrative Agent in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Lender, after deduction Taxes were correctly or withholding for legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any such Taxes, will equal the full amount Lender by the Administrative Agent or such shall be conclusive absent manifest error. Each Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of hereby authorizes the Administrative Agent or to set off and apply any and all amounts at any time owing to such Lender under this Agreement any Credit Document or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become otherwise payable by the Administrative Agent or such to the Lender as a result of such failurefrom any other source against any amount due to the Administrative Agent under this paragraph (d).
(ive) The Borrower’s obligations under this Section 5.3(a) Each Lender shall survive deliver to the termination of this Agreement Borrower and the payment Administrative Agent, at such time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law and such other reasonably requested information as will permit the Borrower or the Administrative Agent, as the case may be, to determine (A) whether or not any payments made hereunder or under any other Credit Document are subject to Taxes, (B) if applicable, the required rate of all amounts payable hereunder.
withholding or deduction, and (bC) such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes in respect of any payments to be made to such Lender by any Credit Party pursuant to any Credit Document or otherwise to establish such Lender’s status for withholding tax purposes in the applicable jurisdiction. In addition, any Lender, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 5.3(a4.4(f)(i), the Borrower 4.4(g) or 4.4(i) below) shall not be required to indemnify if in the Lender’s or pay any additional amounts in respect of withholding tax applicable Agent’s, as applicable, reasonable judgment such completion, execution or submission would subject such Lender or Agent to any amount payable under this Agreement pursuant to material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender or Agent.
(f) Without limiting the generality of Section 5.3(a) above to any 4.4(e), each Non-U.S. LenderLender with respect to any Loan made to the Borrower shall, except if to the extent it is legally eligible to do so:
(i) deliver to the Borrower and the Administrative Agent, prior to the date on which the first payment to the Non-U.S. Lender is due hereunder, two copies of (A) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN or Form W-8BEN-E (as applicable) (or any such Revolving Credit Loans were assigned, participated or transferred to applicable successor form) together with a certificate (substantially in the form of Exhibit H hereto (the “Non-Bank Tax Certificate”) representing that such Non-U.S. Lender at is not a bank for purposes of Section 881(c)(3)(A) of the request or with Code, is not a “10-percent shareholder” (within the consent meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a CFC related to the Borrower (within the meaning of Section 881(c)(3)(C) of the Code), (B) Internal Revenue Service Form W-8BEN or were assignedForm W-8BEN-E, participated as applicable, or transferred to Form W-8ECI (or any applicable successor form), in each case properly completed and duly executed by such Non-U.S. Lender following claiming complete exemption from, or reduced rate of, U.S. federal withholding tax on payments by the Borrower under this Agreement, (C) Internal Revenue Service Form W-8IMY (or any applicable successor form) and all necessary attachments (including the forms described in clauses (A) and (B) above, provided that if the Non-U.S. Lender is a partnership and not a participating Lender, and one or more of the partners is claiming portfolio interest treatment, the Non-Bank Tax Certificate may be provided by such Non-U.S. Lender on behalf of such partners) or (D) any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower to determine the withholding or deduction required to be made; and
(ii) deliver to the Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete or invalid, after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower and during the continuance Administrative Agent, and from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent. Any Non-U.S. Lender that becomes legally ineligible to update any form or certification previously delivered shall promptly notify the Borrower and the Administrative Agent in writing of an Event of Default such Non-U.S. Lender’s inability to do so. Each Person that shall become a Participant or a Lender pursuant to Section 10.1 12.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 4.4(f); provided that in the case of a Participant such Participant shall furnish all such required forms and statements to the Person from which the related participation shall have been purchased. In addition, each Agent shall deliver to the Borrower prior to the date on which the Agent becomes an Agent hereunder, two copies of a properly completed and executed (a) Internal Revenue Service Form W-9 certifying its exemption from U.S. Federal backup withholding or 10(b) (i) Internal Revenue Service Form W-8ECI (with respect to any payments to be received on its own behalf) and (ii) Internal Revenue Service Form W-8IMY (for all other payments), certifying on Part I and Part VI of such Internal Revenue Service Form W-8IMY that it is a U.S. branch that has agreed to be treated as a U.S. person for United States federal withholding tax purposes with respect to payments received by it from the Borrower. Each Agent shall deliver to the Borrower additional documentation on or before the date that any such previously delivered documentation expires or becomes obsolete or invalid, after the occurrence of any event requiring a change in the most recent documentation previously delivered by it to the Borrower, and from time to time thereafter if reasonably requested by the Borrower, or shall promptly notify the Borrower at any time it determines it is no longer in a position to provide the certifications described in the preceding sentence.
(g) If any Lender, the Administrative Agent or the Collateral Agent, as applicable, determines, in its sole discretion, that it had received a refund of an Indemnified Tax or Other Tax for which a payment has been made by the Borrower or any Guarantor pursuant to this Agreement or any other Credit Document, which refund in the good faith judgment of such Lender, the Administrative Agent or the Collateral Agent, as the case may be, is attributable to such payment made by the Borrower or any Guarantor, then the Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall reimburse the Borrower or such Guarantor for such amount (net of all reasonable out-of-pocket expenses of such Lender, the Administrative Agent or the Collateral Agent, as the case may be, and without interest other than any interest received thereon from the relevant Governmental Authority with respect to such refund) as the Lender, Administrative Agent or the Collateral Agent, as the case may be, determines in its sole discretion will leave it, after such reimbursement, in no better or worse position than it would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid; provided that the Borrower or such Guarantor, upon the request of the Lender, the Administrative Agent or the Collateral Agent, agrees to repay the amount paid over to the Borrower or such Guarantor (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Lender, the Administrative Agent or the Collateral Agent in the event the Lender, the Administrative Agent or the Collateral Agent is required to repay such refund to such Governmental Authority. In such event, such Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall, at the Borrower’s request, provide the Borrower with a copy of any notice of assessment or other evidence of the requirement to repay such refund received from the relevant Governmental Authority (provided that such Lender, the Administrative Agent or the Collateral Agent may delete any information therein that it deems confidential). No Lender nor the Administrative Agent nor the Collateral Agent shall be obliged to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Credit Party in connection with this clause (g) or any other provision of this Section 4.4.
Appears in 1 contract
Sources: Senior Secured Term Loan Credit Agreement (Lilis Energy, Inc.)
Net Payments. (ia) All payments made by the Borrower or on behalf of any Credit Party under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding for or on account of, of any current or future income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending officeTaxes, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is as required by Applicable Law. If any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent by or on behalf of any Credit Party under this Agreement or any Lender hereunderother Credit Document (as determined in the good faith discretion of the applicable withholding agent), then the Borrower shall:
(A) promptly notify applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the Administrative Agent of such requirement;
(B) promptly pay full amount deducted or withheld to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by in accordance with Applicable Law, and if such Tax is a Non-Excluded Tax, then the Borrower shall increase the amounts payable to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward applicable Recipient to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing extent necessary so that after such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any has been made (including such Taxes, will deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the full amount the Administrative Agent or such Lender sum it would have received had no such deduction or withholding been required.
(iii) If made. Whenever any Taxes are paid by a Credit Party pursuant to this Section 5.04(a), as soon as practicable thereafter, the Borrower fails shall send to the Administrative Agent the original or a certified copy of a receipt issued by the relevant Governmental Authority, a copy of the return reporting such payment, or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Borrower shall indemnify the Agents and the Lenders for any Non-Excluded Taxes (including Non-Excluded Taxes imposed or asserted on or attributable to amounts payable under this Section 5.04(a)) that are paid by any Agent or Lender or that are required to be withheld or deducted from a payment to any Agent or Lender and any reasonable expenses arising therefrom or with respect thereto, whether or not such Non-Excluded Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority, within ten (10) days after demand therefor. A certificate as to the amount of such payment or liability delivered to the Borrower by an Agent or Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority when due any Taxes that it was required to deduct in accordance with Applicable Law, or withhold under this Section 5.3(a) in respect of any payment to or for at the benefit option of the Administrative Agent or Agent, shall timely reimburse it for the payment of any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to Other Taxes. The agreements in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a5.04(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(bi) Notwithstanding Section 5.3(aEach Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by Applicable Law or reasonably requested by the Borrower or Administrative Agent as will permit such payments to be made without withholding or at a reduced rate; provided, that such Lender is legally entitled to complete, execute and deliver such documentation. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Person that shall become a Participant pursuant to Section 13.06 or a Lender pursuant to Section 13.06 shall, upon the effectiveness of the related transfer, be required to indemnify or pay provide all the forms and statements required pursuant to this Section 5.04(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding any additional amounts other provision of this paragraph, no Lender shall be required to deliver any form (other than such documentation required by Sections 5.04(b)(ii)(A)-(C) and (iii)) that in respect of withholding tax applicable such Lender’s reasonable judgment would subject such Lender to any amount payable material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing,
(A) any Lender that is a “United States Person” as defined in Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent on or about the date on which such Lender becomes a Lender under this Agreement pursuant (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Lender that is not a “United States Person” as defined in Section 5.3(a7701(a)(30) above to any of the Code (a “Non-U.S. Lender”) shall, except if any to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such Revolving Credit Loans were assigned, participated number of copies as shall reasonably be requested) on or transferred to about the date on which such Non-U.S. Lender at becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request or with the consent of the Borrower or were assignedthe Administrative Agent), participated whichever of the following is applicable:
(1) in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed copies of IRS Form W-8BEN or transferred IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2) executed copies of IRS Form W-8ECI;
(3) in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit L-1 to the effect that such Non-U.S. Lender following is not a “bank” within the occurrence meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” within the meaning of Section 957 of the Code related to the Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and during (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or
(4) to the continuance extent a Non-U.S. Lender is not the beneficial owner, executed copies of an Event IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Default Exhibit L-2 or Exhibit L-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Non-U.S. Lender is a partnership and one or more direct or indirect partners of such Non-U.S. Lender are claiming the portfolio interest exemption, such Non-U.S. Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such direct and indirect partner;
(C) Any Non-U.S. Lender shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made;
(iii) Without limiting the generality of the foregoing, if a payment made to a Recipient under any Credit Document would be subject to United States federal withholding tax imposed by FATCA if such Recipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Recipient shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i), of the Code and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Recipient has complied with such Recipient’s obligations under FATCA or to determine the amount to deduct and withhold from such payment under FATCA, if any. Solely for the purposes of this clause (iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iv) Each Recipient agrees that if any form or certification it previously delivered pursuant to this Section 10.1 5.04(b) expires or becomes obsolete or inaccurate in any material respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(c) If any Lender or any Agent determines, in its sole discretion exercised in good faith, that it has received a refund of a Tax for which it has been indemnified by the Borrower pursuant to this Section 5.04 (including by the payment of additional amounts by the Borrower pursuant to this Section 5.04), then such Lender or such Agent, as the case may be, shall reimburse the Borrower for such amount (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 5.04 with respect to the Tax giving rise to such refund), net of all out-of-pocket expenses of such Agent or such Lender (including any Taxes imposed on the receipt of such refund) and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that the Borrower, upon the request of such Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Agent or such Lender in the event such Agent or such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (c), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (c) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any Agent or any Lender to make available its tax returns (or any other information relating to its Taxes which it deems confidential) to the Borrower or any other Person.
(d) Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Non-Excluded Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Non-Excluded Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 13.06 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (d).
(e) Each party’s obligations under this Section 5.04 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Credit Document.
Appears in 1 contract
Net Payments. (ia) All payments made by or on account of any obligation of any Loan Party under any Loan Document will be made without recoupment, setoff, counterclaim, or other defense. To the Borrower extent permitted by applicable law, all payments under this Agreement any Loan Document (including, without limitation, payments on account of principal and interest, and fees) shall be made by or on account of any obligation of any Loan Party free and clear of, of and without deduction or withholding for for, or on account of, any current Taxes. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires an applicable Withholding Agent to deduct or future income withhold any Tax from any payment by or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at any obligation of any Loan Party under any Loan Document, then the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that applicable Withholding Agent shall make such deduction or withholding is required by any applicable law, as modified by and shall timely pay the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be full amount deducted or withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due in accordance with applicable law and, to the full amount required to be deducted extent such Tax is an Indemnified Tax, then the applicable Loan Party shall pay such additional amounts as necessary so that after such deduction or withheld withholding has been made (including the full amount of Taxes required such deductions and withholdings applicable to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender sums payable under this Section 5.3(a4.7(a));
(C) as promptly as possible thereafter, forward the applicable Recipient receives, in aggregate, an amount equal to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender sum it would have received had no such deduction or withholding been requiredmade. Each Loan Party shall deliver to Administrative Agent within 30 days after it has made any such payment to the applicable Governmental Authority an original or certified receipt issued by such Governmental Authority (or other evidence reasonably satisfactory to Administrative Agent) evidencing the payment to such Governmental Authority of all amounts so required to be deducted or withheld from such payment.
(iiib) If the Borrower fails to The Loan Parties shall timely pay to the relevant Governmental Authority when due in accordance with applicable law, or at the option of Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c) The Loan Parties shall severally indemnify and hold harmless each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes that it was required (including Indemnified Taxes imposed or asserted on or attributable to deduct or withhold amounts payable under this Section 5.3(a4.7) in payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided, however, that if a Recipient does not notify the applicable Borrower of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations indemnification claim under this Section 5.3(a4.7(c) shall survive within 120 days after such Recipient has received written notice of the termination claim of this Agreement and the payment of all amounts payable hereunder.
(b) Notwithstanding Section 5.3(a)a Governmental Authority giving rise to such indemnification claim, the Borrower Loan Parties shall not be required to indemnify such Recipient for any incremental interest or pay penalties resulting from such Recipient’s failure to notify the applicable Borrower within such 120-day period. A certificate delivered to the applicable Borrower (showing in reasonable detail the basis for such calculation) as to the amount of such payment by a Recipient (with a copy to Administrative Agent if such Recipient is not Administrative Agent), absent manifest error, shall be final, conclusive, and binding upon on all parties.
(i) Subject to Section 4.7(e), each Lender shall deliver to the applicable Borrower and Administrative Agent, at such times as are reasonably requested by such Borrower or Administrative Agent, any additional amounts documentation prescribed by law or information required under any administrative policy or any relevant Governmental Authority, or reasonably requested by such Borrower or Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or reduction in, any withholding Tax with respect to any payments to be made to such Lender under any Loan Document or otherwise required or reasonably necessary to establish such Lender’s status for withholding tax or information reporting purposes in an applicable jurisdiction. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in this Section 4.7(d) or (e) or information expired, obsolete or inaccurate in any material respect, deliver promptly to the applicable Borrower and Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the applicable withholding agent) or promptly notify such Borrower and Administrative Agent of its inability to do so. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 4.7(d)(ii)(A), (B) and (C) below or of any documentation requested pursuant to clause (d)(iii) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, with respect to each Lender receiving payments in respect of withholding tax applicable any Loans, Letters of Credit, or Commitments provided to any amount payable under this Agreement pursuant to Section 5.3(aU.S. Borrower:
(A) above to any each such Lender, other than a Non-U.S. Lender, except if shall deliver to U.S. Borrower and Administrative Agent on or before the date on which it becomes a party to this Agreement, two duly executed, properly completed originals or copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax,
(B) each such Lender that is a Non-U.S. Lender entitled under the Code or any applicable treaty to an exemption from or reduction of U.S. federal withholding Tax with respect to any payments hereunder or under any other Loan Document shall deliver to U.S. Borrower and Administrative Agent (in such Revolving Credit Loans were assigned, participated number of copies as shall be requested by the recipient) on or transferred prior to the date on which such Non-U.S. Lender at the request or with the consent becomes a Lender under this Agreement, whichever of the Borrower following is applicable:
(I) duly executed, properly completed originals of IRS Form W-8BEN or were assignedW-8BEN-E or any successor thereto claiming eligibility for benefits of an income tax treaty to which the United States is a party;
(II) duly executed, participated properly completed originals of IRS Form W-8ECI or transferred any successor thereto;
(III) in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate (a “U.S. Tax Compliance Certificate”), in substantially the form of Exhibit 4.7(d)-1, to the effect that (i) such Non-U.S. Lender following is not (A) a “bank” within the occurrence meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of U.S. Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and (ii) interest payments on the Loans are not effectively connected with the Non-U.S. Lender’s conduct of a U.S. trade or business, and (y) duly executed, properly completed copies of IRS Form W-8BEN or W-8BEN-E;
(IV) to the extent a Non-U.S. Lender is not the beneficial owner (for example, where the Non-U.S. Lender is a partnership or a participating Lender), duly executed, properly completed originals of IRS Form W-8IMY, or any successor thereto, of the Non-U.S. Lender, accompanied by IRS Form W-9, Form W-8ECI, Form W-8BEN or W-8BEN-E, U.S. Tax Compliance Certificate substantially in the form of Exhibit 4.7(d)-2 or Exhibit 4.7(d)-3, Form W-8IMY, or any other required information, or any successor forms, from each beneficial owner that would be required under this Section 4.7(d) if such beneficial owner were a Lender, as applicable (provided that, if the Non-U.S. Lender is a partnership for U.S. federal income tax purposes (and not a participating Lender), and one or more beneficial owners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate substantially in the form of Exhibit 4.7(d)-4 may be provided by such Non-U.S. Lender on behalf of such beneficial owners, provided such certificates are duly executed and properly completed originals), or any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit U.S. Borrower and Administrative Agent to determine the withholding or deduction required to be made; or
(V) any other form prescribed by applicable requirements of U.S. federal income tax law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit U.S. Borrower and Administrative Agent to determine the withholding or deduction required to be made.
(C) If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Sections 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to U.S. Borrower and Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by U.S. Borrower or Administrative Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by U.S. Borrower or Administrative Agent as may be necessary for U.S. Borrower or Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender or Issuing Lender has complied with such Lender’s obligations under FATCA or to determine or, if necessary, to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (C), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. Notwithstanding any other provision of this Section 4.7(d), a Lender shall not be required to deliver any form that such Lender is not legally eligible to deliver.
(iii) The Administrative Agent (acting in the name of and during on behalf of the continuance of an Event of Default applicable Lenders) shall, upon written request by O-I Mexico, deliver to O-I Mexico: (A) a tax invoice evidencing any payment made by O-I Mexico under this Agreement or any other Loan Document pursuant to the Mexican Federal Fiscal Code and rule 2.7.1.16 of the MTR (or any successor provision thereof) and any other applicable Mexican tax provision (which invoice shall be in substantially the form set forth in Exhibit 4.7(d)(iii) or such other form as may be reasonably agreed by the Administrative Agent and O-I Mexico, which in any case shall include the relevant information related to interest owing or paid to each of the applicable Lenders and the tax information of each of the applicable Lenders); and (B) in the case of any interest that has accrued with respect to any Multicurrency Revolving Loan made to O-I Mexico but which has not and will not become payable prior to December 31st of any given calendar year, a tax invoice for such unpaid but accrued interest (which invoice shall be substantially in the form of Exhibit 4.7(d)(iii) or such other form as may be reasonably agreed by the Administrative Agent and ▇-▇ ▇▇▇▇▇▇, which in any case shall include the relevant information related to interest owing or paid to each of the applicable Lenders and the tax information of each of the applicable Lenders). Any tax invoice issued pursuant to clause (B) of the immediately preceding sentence shall not be considered in any case as a payment receipt and any such tax invoice shall not (subject to any requirements of applicable law) generate any withholding obligation on the part of O-I Mexico at its issuance date. If and to the extent that a payment of interest occurs with respect to interest that was the subject of a tax invoice issued pursuant to clause (B) of the second preceding sentence, O-I Mexico shall be entitled to request a tax invoice for such payment pursuant to clause (A) of the second preceding sentence and such second tax invoice shall constitute evidence for such payment and (subject to any requirements of applicable law) shall give rise to a withholding obligation on the part of O-I Mexico for the amount of such interest. Any failure or delay on the part of the Administrative Agent to deliver any tax invoice pursuant to this clause (iii) (or any inaccuracy or deficiency in any such tax invoice) shall not affect the obligations of O-I Mexico under this Agreement and the other Loan Documents (including, without limitation, its obligations under Sections 4.7(a) or 4.7(c)). The Lenders shall provide the Administrative Agent with any tax information reasonably requested by it to enable it to complete any tax invoice requested pursuant to this clause (iii). O-I Mexico shall provide the Administrative Agent with any tax information of O-I Mexico reasonably requested by it and at disposal of O-I Mexico to enable it to complete any tax invoice requested pursuant to this clause (iii).
(e) Each Agent, Lender, Documentation Agent and Arranger will cooperate with O-I Australia, and will do or provide such other things as may be reasonably requested from time to time by O-I Australia, to demonstrate that the requirements of section 128F of the Income Tax Assessment Act of 1936 (Commonwealth of Australia) were satisfied in relation to the issues of Tranche B Term Loans and Revolving Loans made to O-I Australia and Notes issued by O-I Australia under this Agreement, so that payment of interest under each of the above-mentioned Loans will be exempt from withholding tax under the Income Tax Assessment Act of 1936 (Commonwealth of Australia). Non-compliance by any Arranger or Documentation Agent with this paragraph shall not relieve O-I Australia of its obligations under Sections 4.7(a) or 4.7(c).
(f) Each Lender under the Tranche C Term Loan Facility represents and warrants to O-I NZ that as of the Closing Date and on any date that any interest (or any payment deemed by applicable law to be interest) is payable in respect of the Tranche C Term Loans that if it receives any such payment under this Agreement subject to the New Zealand resident withholding tax rules, it holds an “RWT exemption certificate” (as defined in the New Zealand Income Tax Act 2007 (New Zealand)) or otherwise has exempt status in respect of New Zealand resident withholding tax. Non-compliance by any Lender with this clause (f) shall not relieve O-I NZ of its obligations under Section 10.1 4.7(a).
(g) O-I NZ or 10any other Loan Party who makes a payment under this Agreement subject to the New Zealand non-resident withholding tax rules may at any time, and shall if requested by any Lender under the Tranche C Term Loan Facility:
(i) if permitted by applicable law, register as an “Approved Issuer” (as defined in the New Zealand Income Tax Act 2007 (New Zealand)) and register this document with the New Zealand Inland Revenue Department under section 86H of the Stamp and Cheque Duties ▇▇▇ ▇▇▇▇ (New Zealand); and
(ii) in respect of each payment of interest (or any payment deemed by applicable law to be interest) in respect of the Tranche C Term Loans to a Lender that receives such payments subject to the New Zealand non-resident withholding tax rules, make the relevant payment of “Approved Issuer Levy” (as defined in the Stamp and Cheque Duties ▇▇▇ ▇▇▇▇ (New Zealand)) in accordance with section 86K of the Stamp and Cheque Duties ▇▇▇ ▇▇▇▇ (New Zealand) in order to reduce (to the extent permitted by law) the applicable level of non-resident withholding tax to zero per cent.
(h) Each Lender shall severally indemnify Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified Administrative Agent for such Indemnified Taxes and without limiting the obligation of th
Appears in 1 contract
Net Payments. (ia) All payments made by the Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdingswithholdings (including mortgage recording taxes and similar fees), now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (Ai) any net income taxes, taxes and franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, Lender and (Bii) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if . If any such Taxes non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower amounts so payable to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward shall be increased to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable extent necessary to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay yield to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, (after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder.
(b) Notwithstanding Section 5.3(a)hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the Borrower shall not be required to indemnify or pay increase any additional such amounts in respect of withholding tax applicable payable to any amount payable Lender that is not organized under this Agreement pursuant to Section 5.3(a) above to any the laws of the United States of America or a state thereof (each such Lender, a "Non-U.S. Lender, except ") if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or fails to comply with the consent requirements of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence paragraph (b) of and during the continuance of an Event of Default pursuant to this Section 10.1 or 105.
Appears in 1 contract
Sources: Revolving Credit Agreement (Kindercare Learning Centers Inc /De)
Net Payments. (ia) All payments made by or on account of any obligation of any Loan Party under any Loan Document will be made without recoupment, setoff, counterclaim, or other defense. To the Borrower extent permitted by applicable law, all payments under this Agreement any Loan Document (including, without limitation, payments on account of principal and interest, and fees) shall be made by or on account of any obligation of any Loan Party free and clear of, of and without deduction or withholding for for, or on account of, any current Taxes. If any applicable law (as determined in the good faith discretion of an applicable withholding agent) requires an applicable withholding agent to deduct or future income withhold any Tax from any payment by or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at any obligation of any Loan Party under any Loan Document, then the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such applicable withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that agent shall make such deduction or withholding is required by any applicable law, as modified by and shall timely pay the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be full amount deducted or withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due in accordance with applicable law and, to the full amount required to be deducted extent such Tax is an Indemnified Tax, then the applicable Loan Party shall pay such additional amounts as necessary so that after such deduction or withheld withholding has been made (including the full amount of Taxes required such deductions and withholdings applicable to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender sums payable under this Section 5.3(a4.7(a));
(C) as promptly as possible thereafter, forward the applicable Recipient receives, in aggregate, an amount equal to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender sum it would have received had no such deduction or withholding been requiredmade. Each Loan Party shall deliver to the Administrative Agent within 30 days after it has made any such payment to the applicable Governmental Authority an original or certified receipt issued by such Governmental Authority (or other evidence reasonably satisfactory to Administrative Agent) evidencing the payment to such Governmental Authority of all amounts so required to be deducted or withheld from such payment.
(iiib) If the Borrower fails to The Loan Parties shall timely pay to the relevant Governmental Authority when due in accordance with applicable law, or at the option of Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c) OI Europe shall only with respect to Indemnified Taxes that imposed on it was required or attributable to deduct any payments made by or withhold on its behalf, and the other Loan Parties shall jointly and severally, indemnify and hold harmless each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 5.3(a4.7) in payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided, however, that if a Recipient does not notify the applicable Borrower of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations indemnification claim under this Section 5.3(a4.7(c) shall survive within 120 days after such Recipient has received written notice of the termination claim of this Agreement and the payment of all amounts payable hereunder.
(b) Notwithstanding Section 5.3(a)a Governmental Authority giving rise to such indemnification claim, the Borrower Loan Parties shall not be required to indemnify such Recipient for any incremental interest or pay penalties resulting from such Recipient’s failure to notify the applicable Borrower within such 120-day period. A certificate delivered to the applicable Borrower (showing in reasonable detail the basis for such calculation) as to the amount of such payment by a Recipient (with a copy to Administrative Agent if such Recipient is not Administrative Agent), absent manifest error, shall be final, conclusive, and binding upon on all parties.
(i) Subject to Section 4.7(e), each Lender shall deliver to the applicable Borrower and Administrative Agent, at such times as are reasonably requested by such Borrower or Administrative Agent, any additional amounts documentation prescribed by law or information required under any administrative policy or any relevant Governmental Authority, or reasonably requested by such Borrower or Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or reduction in, any withholding Tax with respect to any payments to be made to such Lender under any Loan Document or otherwise required or reasonably necessary to establish such Lender’s status for withholding tax or information reporting purposes in an applicable jurisdiction. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in this Section 4.7(d)) or information expired, obsolete or inaccurate in any material respect, deliver promptly to the applicable Borrower and Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the applicable withholding agent) or promptly notify such Borrower and Administrative Agent of its inability to do so. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 4.7(d)(ii)(A), (ii)(B) and (ii)(C) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, with respect to each Lender receiving payments in respect of withholding tax applicable any Loans, Letters of Credit, or Commitments provided to any amount payable under this Agreement pursuant to Section 5.3(aU.S. Borrower:
(A) above to any each such Lender, other than a Non-U.S. Lender, except if shall deliver to U.S. Borrower and Administrative Agent on or before the date on which it becomes a party to this Agreement, two duly executed, properly completed originals or copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax,
(B) each such Lender that is a Non-U.S. Lender entitled under the Code or any applicable treaty to an exemption from or reduction of U.S. federal withholding Tax with respect to any payments hereunder or under any other Loan Document shall deliver to U.S. Borrower and Administrative Agent (in such Revolving Credit Loans were assigned, participated number of copies as shall be requested by the recipient) on or transferred prior to the date on which such Non-U.S. Lender at the request or with the consent becomes a Lender under this Agreement, whichever of the Borrower following is applicable:
(I) duly executed, properly completed originals of IRS Form W-8BEN or were assignedW-8BEN-E or any successor thereto claiming eligibility for benefits of an income tax treaty to which the United States is a party;
(II) duly executed, participated properly completed originals of IRS Form W-8ECI or transferred any successor thereto;
(III) in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate (a “U.S. Tax Compliance Certificate”), in substantially the form of Exhibit 4.7(d)-1, to the effect that (i) such Non-U.S. Lender following is not (A) a “bank” within the occurrence meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of U.S. Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and during (ii) interest payments on the continuance Loans are not effectively connected with the Non-U.S. Lender’s conduct of a U.S. trade or business, and (y) duly executed, properly completed copies of IRS Form W-8BEN or W-8BEN-E;
(IV) to the extent a Non-U.S. Lender is not the beneficial owner (for example, where the Non-U.S. Lender is a partnership or a participating Lender), duly executed, properly completed originals of IRS Form W-8IMY, or any successor thereto, of the Non-U.S. Lender, accompanied by IRS Form W-9, Form W-8ECI, Form W-8BEN or W-8BEN-E, U.S. Tax Compliance Certificate substantially in the form of Exhibit 4.7(d)-2 or Exhibit 4.7(d)-3, Form W-8IMY, or any other required information, or any successor forms, from each beneficial owner that would be required under this Section 4.7(d) if such beneficial owner were a Lender, as applicable (provided that, if the Non-U.S. Lender is a partnership for U.S. federal income tax purposes (and not a participating Lender), and one or more beneficial owners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate substantially in the form of Exhibit 4.7(d)-4 may be provided by such Non-U.S. Lender on behalf of such beneficial owners, provided such certificates are duly executed and properly completed originals), or any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit U.S. Borrower and Administrative Agent to determine the withholding or deduction required to be made; or
(V) any other form prescribed by applicable requirements of U.S. federal income tax law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit U.S. Borrower and Administrative Agent to determine the withholding or deduction required to be made.
(C) If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Sections 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to U.S. Borrower and Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by U.S. Borrower or Administrative Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by U.S. Borrower or Administrative Agent as may be necessary for U.S. Borrower or Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender or Issuing Lender has complied with such Lender’s obligations under FATCA or to determine or, if necessary, to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (C), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. Notwithstanding any other provision of this Section 4.7(d), a Lender shall not be required to deliver any form that such Lender is not legally eligible to deliver.
(e) Each Agent, Lender, Documentation Agent and Arranger will cooperate with ACI, and will do or provide such other things as may be reasonably requested from time to time by ACI, to demonstrate that the requirements of section 128F of the Income Tax Assessment Act of 1936 (Commonwealth of Australia) were satisfied in relation to the issues of Tranche B Term Loans and Revolving Loans made to ACI and Notes issued by ACI under this Agreement, so that payment of interest under each of the above-mentioned Loans will be exempt from withholding tax under the Income Tax Assessment Act of 1936 (Commonwealth of Australia). Non-compliance by any Arranger or Documentation Agent with this paragraph shall not relieve ACI of its obligations under Sections 4.7(a) or 4.7(c).
(f) Each Lender under the Tranche C Term Facility represents and warrants to ACI NZ that as of the Closing Date and on any date that any interest (or any payment deemed by applicable law to be interest) is payable in respect of the Tranche C Term Loans that if it receives any such payment under this Agreement subject to the New Zealand resident withholding tax rules, it holds an Event “RWT exemption certificate” (as defined in the New Zealand Income Tax Act 2007 (New Zealand)) or otherwise has exempt status in respect of Default New Zealand resident withholding tax. Non-compliance by any Lender with this clause (f) shall not relieve ACI NZ of its obligations under Section 4.7(a).
(g) ACI NZ or any other Loan Party who makes a payment under this Agreement subject to the New Zealand non-resident withholding tax rules may at any time, and shall if requested by any Lender under the Tranche C Term Facility:
(i) if permitted by applicable law, register as an “Approved Issuer” (as defined in the New Zealand Income Tax Act 2007 (New Zealand)) and register this document with the New Zealand Inland Revenue Department under section 86H of the Stamp and Cheque Duties ▇▇▇ ▇▇▇▇ (New Zealand); and
(ii) in respect of each payment of interest (or any payment deemed by applicable law to be interest) in respect of the Tranche C Term Loans to a Lender that receives such payments subject to the New Zealand non-resident withholding tax rules, make the relevant payment of “Approved Issuer Levy” (as defined in the Stamp and Cheque Duties Act 1971 (New Zealand)) in accordance with section 86K of the Stamp and Cheque Duties ▇▇▇ ▇▇▇▇ (New Zealand) in order to reduce (to the extent permitted by law) the applicable level of non-resident withholding tax to zero per cent.
(h) Each Lender shall severally indemnify Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 12.8 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by Administrative Agent to the Lender from any other source against any amount due to Administrative Agent under this paragraph (f).
(i) If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 10.1 4.7 (including by the payment of additional amounts pursuant to this Section 4.7), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 4.7 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (g) (plus any penalties, interest or 10other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(j) For purposes of this Section 4.7, the term “Lender” shall include any Overdraft Provider or Issuing Lender, and the term “applicable law” shall include FATCA.
(k) Each party’s obligations under this Sec
Appears in 1 contract
Net Payments. (ia) All Subject to the following sentence, all payments made by or on behalf of the Borrower under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding Taxes (Aincluding Other Taxes) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than Excluded Taxes. If any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (Taxes other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending officeExcluded Taxes (such Taxes, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Non-Excluded Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable under this Agreement, the Borrower shall increase the amounts payable to such Agent or such Lender to the extent necessary to allow such Agent or such Lender to receive (after payment of all Non-Excluded Taxes, including any such Non-Excluded Taxes imposed on additional amounts payable hereunder) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement. Whenever any Non-Excluded Taxes are paid by the Borrower, as soon as practicable thereafter, the Borrower shall send to the Administrative Agent for its own account or any Lender hereunder, for the Borrower shall:
(A) promptly notify the Administrative Agent account of such requirement;
(B) promptly pay to Secured Party, as the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount case may be, a certified copy of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent an original official receipt (or a certified copy), or other documentation reasonably evidence acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually acting reasonably) received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) Borrower showing payment thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do soappropriate taxing authority, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or Agents and the Lenders for any such Lender for Non- Excluded Taxes plus any incremental taxes, interest, costs or penalties that may become payable are paid by the Administrative any Agent or such any Lender as a result of any such failure.
. A certificate as to the amount of such payment or liability delivered to the Borrower by an Agent or Lender (iv) with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law. The Borrower’s obligations under agreements in this Section 5.3(a5.04(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(bi) Notwithstanding Section 5.3(aEach Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by Applicable Law as will permit such payments to be made without withholding or at a reduced rate; provided, that such Lender is legally entitled to complete, execute and deliver such documentation. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Person that shall become a Participant pursuant to Section 13.06 or a Lender pursuant to Section 13.06 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.04(b) or (c), as applicable; provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding any other provision of this paragraph, a Non-U.S. Lender shall not be required to indemnify or pay deliver any additional amounts form (other than such documentation required by Sections 5.04(b)(ii), (iii) and (iv)) that in respect of withholding tax applicable such Lender’s reasonable judgment would subject such Lender to any amount payable under this Agreement pursuant to material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender:
(ii) Without limiting the generality of the foregoing, in the event that the Borrower is a “United States Person” as defined in Section 5.3(a7701(a)(30) above to of the Code, any Lender that is not a “United States Person” as defined in Section 7701(a)(30) of the Code (a “Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.”) shall:
Appears in 1 contract
Sources: Credit Agreement
Net Payments. (ia) All payments made by the US Borrower and the UK Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (Ai) any net income taxes, taxes and franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, Lender and (Bii) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if . If any such Taxes non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower amounts so payable to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward shall be increased to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable extent necessary to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a "Non-U.S. Lender") if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, in addition as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the payment to which the Administrative Agent for its own account or for the account of such Lender is otherwise entitled under this AgreementLender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such additional amount as is necessary to ensure that the net amount actually Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was other required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do sodocumentary evidence, the US Borrower or the UK Borrower, as the case may be, shall forthwith on demand fully indemnify the Administrative Agent or such Lender and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such any Lender as a result of any such failure.
(iv) . The Borrower’s obligations under agreements in this Section 5.3(a5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Notwithstanding Each Non-U.S. Lender shall:
(i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 5.3(a871(h) or 881(c) of the Code with respect to payments of "portfolio interest", United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement;
(ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and
(iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b), provided that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver.
(c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender at became a party to this Agreement (or, in the request or with case of a Participant that is not organized under the consent laws of the Borrower United States of America or were assigneda state thereof (a "Non-U.S. Participant"), participated or transferred to on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender following (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the occurrence indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made.
(d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if:
(i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender;
(ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or
(iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date.
(e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower's or UK Borrower's expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4.
(f) Each Lender represents and agrees that, on the Funding Date and at all times during the continuance term of an Event this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of Default pursuant the Code and the regulations thereunder) with respect to Section 10.1 or 10the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.
Appears in 1 contract
Net Payments. (ia) All payments made by the US Borrower and the UK Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (Ai) any net income taxes, taxes and franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, Lender and (Bii) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if . If any such Taxes non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower amounts so payable to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward shall be increased to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable extent necessary to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a "Non-U.S. Lender") if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, in addition as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the payment to which the Administrative Agent for its own account or for the account of such Lender is otherwise entitled under this AgreementLender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such additional amount as is necessary to ensure that the net amount actually Lender, acting reasonably) received by such US Borrower or UK Borrower showing payment thereof. If the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, such Lender, after deduction US Borrower or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the UK Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such any Lender as a result of any such failure.
(iv) . The Borrower’s obligations under agreements in this Section 5.3(a5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Notwithstanding Each Non-U.S. Lender shall:
(i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 5.3(a871(h) or 881(c) of the Code with respect to payments of "portfolio interest", United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement;
(ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and
(iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b), provided that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased.
(c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender at became a party to this Agreement (or, in the request or with case of a Participant that is not organized under the consent laws of the United States of America or a state thereof (a "Non-U.S. Participant"), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or were assignedthe UK Borrower, participated or transferred (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non-U.S. Lender following or Non-U.S. Participant to comply with the occurrence provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made.
(d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if:
(i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender;
(ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or
(iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; except to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Closing Date.
(e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower's or UK Borrower's expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither the Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (d) or any other provision of this Section 5.4.
(f) Each Lender represents and agrees that, on the Closing Date and the Restatement Effective Date and at all times during the continuance term of an Event this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of Default pursuant the Code and the regulations thereunder) with respect to Section 10.1 or 10the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.
Appears in 1 contract
Net Payments. (i) All payments required to be made hereunder by the Borrower under this Agreement MRM shall be made free and clear ofwithout withholding or deduction at source for, and without deduction or withholding for or on account of, any current present or future income or other taxes, levies, impostsfees, duties, chargesassessments or governmental charges of whatever nature imposed or levied by or on behalf of Bermuda or any other jurisdiction in which MRM is organized or resident for tax purposes (each, a "taxing jurisdiction") or any political subdivision or taxing authority thereof or therein, unless such taxes, fees, deductions duties, assessments or withholdings, now or hereafter imposed, levied, collected, governmental charges are required to be withheld or assessed deducted by any Governmental Authority, excluding (Ai) any net income taxes, franchise taxes the laws (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (Bregulations or ruling promulgated thereunder) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the taxing jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including a holding by a court of competent jurisdiction or by a taxing authority in a taxing jurisdiction or any political subdivision thereof). If any withholding or deduction at source is required, MRM shall, subject to the limitations and exceptions set forth below, pay to the Holder of any Preferred Security such additional amounts as may be necessary so that every net payment of principal, premium, if any, interest or any other amount made to such Holder, after such withholding or deduction, shall not be less than the amount provided for in this Guarantee Agreement to be then due and payable (the "Additional Amounts"); provided, that MRM shall not be required to make payment of such Additional Amounts for or on account of:
(1) any tax, fee, duty, assessment or governmental charge of whatever nature which would not have been imposed but for the fact that such Holder or the Owner of such Preferred Security: (A) was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the relevant taxing jurisdiction or any political subdivision thereof or therein or otherwise had some connection with the relevant taxing jurisdiction or any political subdivision thereof or therein other than any such connection arising solely from by reason of the Administrative Agent mere ownership of, or such Lender having executed, delivered or performed its obligations or received a receipt of payment under, such Preferred Security or enforcedthis Guarantee Agreement; (B) presented such Preferred Security for payment in the relevant taxing jurisdiction or any political subdivision thereof or therein, this Agreementunless such Preferred Security could not have been presented for payment elsewhere; or (C) presented such Preferred Security more than thirty (30) days after the date on which the payment in respect of such Preferred Security first became due and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending officepayable, except to the extent that such Lender Holder would have been entitled to such Additional Amounts if it had presented such Preferred Security for payment on any day within such period of thirty (30) days;
(2) any estate, inheritance, gift, sale, transfer, personal property or its assignorsimilar tax, fee, duty, assessment or other governmental charge;
(3) any tax, fee, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure by such Holder or such Owner to comply, within 90 days, with any reasonable request by MRM addressed to such Holder or such Owner (A) to provide information concerning the nationality, residence or identity of such Holder or such 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 statute, treaty, regulation or administrative practice of the relevant taxing jurisdiction or any political subdivision thereof or therein as a precondition to exemption from all or part of such tax, fee, duty, assessment or other governmental charge; nor shall Additional Amounts be paid with respect to any payment of the principal of, or premium, if any, interest or any other amounts on, any such Preferred Security to any Holder where the Owner of such Preferred Security is a fiduciary or partnership to the extent such payment would be required by the laws of the relevant taxing jurisdiction (or any political subdivision or relevant taxing authority thereof or therein) was entitled, at to be included in the time of designation income for tax purposes of a new lending office or assignment, to receive additional amounts from the Borrower beneficiary with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction fiduciary or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent partner of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment partnership who would not have been entitled to such Governmental Authority; and
(D) pay Additional Amounts had it been the Holder of the Preferred Security. All references in this Guarantee Agreement to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received Guarantee Payments shall include any Additional Amounts payable by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) MRM in respect of any payment such Guarantee Payments. In administering the provisions of this Section, the Guarantee Trustee shall be entitled to or for rely on, and MRM agrees to provide to it, the benefit certifications provided to the Note Trustee under Section 15.3 of the Administrative Agent or any Lender Indenture. The Guarantee Trustee shall be entitled to the same indemnity available to the Note Trustee under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent last sentence of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence last paragraph of and during the continuance of an Event of Default pursuant to said Section 10.1 or 1015.3.
Appears in 1 contract
Sources: Preferred Securities Guarantee Agreement (MRM Capital Trust Iii)
Net Payments. (i) All payments of principal of and premium, if any, interest and any other amounts on, or in respect of, the Securities of any series shall be made by the Borrower under this Agreement shall be made free and clear ofGuarantor without withholding or deduction at source for, and without deduction or withholding for or on account of, any current present or future income or other taxes, levies, impostsfees, duties, chargesassessments or governmental charges of whatever nature imposed or levied by or on behalf of The Netherlands (the "taxing jurisdiction") or any political subdivision or taxing authority thereof or therein, unless such taxes, fees, deductions duties, assessments or withholdings, now or hereafter imposed, levied, collected, governmental charges are required to be withheld or assessed deducted by any Governmental Authority, excluding (Ai) any net income taxes, franchise taxes the laws (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (Bregulations or ruling promulgated thereunder) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the taxing jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including, without limitation, a holding by a court of competent jurisdiction or by a taxing authority in a taxing jurisdiction or any political subdivision thereof). If a withholding or deduction at source is required, the Guarantor shall, subject to certain limitations and exceptions set forth below, pay to the Holder of any such Security such additional amounts as may be necessary so that every net payment of principal, premium, if any, interest or any other amount made to such Holder, after such withholding or deduction, shall not be less than the amount provided for in such Security and this Indenture to be then due and payable; provided, however, that the Guarantor shall not be required to make payment of such additional amounts for or on account of:
(a) any tax, fee, duty, assessment or governmental charge of whatever nature which would not have been imposed but for the fact that such Holder: (A) was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the relevant taxing jurisdiction or any political subdivision thereof or otherwise had some connection with the relevant taxing jurisdiction other than any such connection arising solely from by reason of the Administrative Agent mere ownership of, or such Lender having executed, delivered or performed its obligations or received a receipt of payment under, such Security; (B) presented such Security for payment in the relevant taxing jurisdiction or enforcedany political subdivision thereof, this Agreementunless such Security could not have been presented for payment elsewhere; or (C) presented such Security more than thirty (30) days after the date on which the payment in respect of such Security first became due and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending officeprovided for, whichever is later, except to the extent that the Holder would have been entitled to such Lender additional amounts if it had presented such Security for payment on any day within such period of thirty (30) days;
(b) any estate, inheritance, gift, sale, transfer, personal property or its assignorsimilar tax, assessment or other governmental charge;
(c) any tax assessment or other governmental charge imposed on a payment that is required to be made pursuant to any European Union Directive on the taxation of savings implementing the conclusions of the ECOFIN council meetings of November 26 - 27, 2000 and June 3, 2003 or any law implementing or complying with, or introduced in order to confirm such directive;
(d) 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 such Security to comply with any reasonable request by the Guarantor addressed to the Holder within 90 days of such request (A) to provide information concerning the nationality, residence or identity 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 statute, treaty, regulation or administrative practice of the relevant taxing jurisdiction or any political subdivision thereof as a precondition to exemption from all or part of such tax, assessment or other governmental charge; or
(e) any combination of items (a), (b) (c) and (d); nor shall additional amounts be paid with respect to any payment of the principal of, or premium, if any, interest or any other amounts on, any such Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such Security to the extent such payment would be required by the laws of the relevant taxing jurisdiction (or any political subdivision or relevant taxing authority thereof or therein) was entitled, at to be included in the time of designation income for tax purposes of a new lending office beneficiary or assignment, to receive additional amounts from the Borrower partner or settlor with respect to such withholding tax fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had it been the Holder of the Security. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium, interest or any other amounts on, or in respect of, any Security of any series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of additional amounts provided by the terms of such series established hereby or pursuant to this Section 5.3(a), (“Taxes”) except hereto to the extent that that, in such deduction context, additional amounts are, were or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then would be payable in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment respect thereof pursuant to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lenderterms, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect and express mention of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all additional amounts payable hereunder.
(bif applicable) Notwithstanding Section 5.3(a), the Borrower in any provision hereof shall not be required to indemnify or pay any construed as excluding the payment of additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any those provisions hereof where such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10express mention is not made.
Appears in 1 contract
Net Payments. (ia) All Subject to the following sentence, all payments made by or on behalf of the Borrower under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income or Taxes (including Other Taxes) other than Excluded Taxes. If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), withholdings (“Non-Excluded Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunderunder this Agreement, the Borrower shall:
(A) promptly notify shall increase the Administrative Agent of amounts payable to such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under to the extent necessary to yield to such Agent or such Lender (after payment of all Non-Excluded Taxes, including any such Non-Excluded Taxes imposed on additional amounts payable hereunder) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Section 5.3(a));
(C) Agreement. Whenever any Non-Excluded Taxes are payable by the Borrower, as promptly as possible thereafter, forward the Borrower shall send to the Administrative Agent for its own account or for the account of such Secured Party, as the case may be, a certified copy of an original official receipt (or a certified copy), or other documentation reasonably evidence acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually acting reasonably) received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) Borrower showing payment thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the relevant Governmental Authority when due any Taxes that it was required appropriate taxing authority or fails to deduct or withhold under this Section 5.3(a) in respect of any payment remit to or for the benefit of the Administrative Agent the required receipts or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when other required to do sodocumentary evidence, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender Agents and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative any Agent or such any Lender as a result of any such failure.
(iv) . In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law. The Borrower’s obligations under agreements in this Section 5.3(a5.04(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Notwithstanding Each Lender that is not organized under the laws of the United States of America or any state thereof (a “Non-U.S. Lender”) shall:
(i) deliver to the Borrower and the Administrative Agent two copies of either (A) in the case of Non-U.S. Lender claiming exemption from U.S. federal withholding tax under Section 5.3(a871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign corporation related to the Borrower (within the meaning of Section 864(d)(4) of the Code)), or (B) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. federal withholding tax on payments by the Borrower under this Agreement;
(ii) deliver to the Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) promptly upon the obsolescence or invalidity of any form previously delivered by such Non-U.S. Lender; and
(iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the Borrower or the Administrative Agent, unless in any such case any change in Applicable Laws has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the Borrower and the Administrative Agent, in which case such Lender shall not be required to indemnify provide any form under subparagraphs (i) or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement (ii) above. Each Person that shall become a Participant pursuant to Section 5.3(a13.06 or a Lender pursuant to Section 13.06 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.04(b) above or (c), as applicable; provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding any other provision of this paragraph, a Non-U.S. Lender, except if Lender shall not be required to deliver any such Revolving Credit Loans were assigned, participated or transferred form pursuant to this paragraph that such Non-U.S. Lender is not legally able to deliver.
(c) Each Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the request time or times prescribed by Applicable Law or reasonably requested by the Borrower, such properly completed and executed documentation prescribed by Applicable Law as will permit such payments to be made without withholding or at a reduced rate; provided, that such Lender is legally entitled to complete, execute and deliver such documentation and in such Lender’s judgment such completion, execution or submission would not materially prejudice the legal position of such Lender.
(d) The Borrower shall indemnify the Agent and each Lender within 10 days after written demand therefor, for the full amount of any Non-Excluded Taxes or Other Taxes paid by the Agent or such Lender, as the case may be, on or with the consent respect to any payment by or on account of any obligation of the Borrower hereunder (including Non-Excluded Taxes or were assignedOther Taxes imposed or asserted on or attributable to amounts payable under this Section) and any penalties, participated interest, additions to tax and reasonable expenses arising therefrom or transferred to with respect thereto, whether or not such Non-U.S. Excluded Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender following or by the occurrence Agent on its own behalf or on behalf of and during a Lender shall be conclusive absent manifest error.
(e) If any Lender or any Agent determines, in its sole discretion, that it has received a refund of a tax for which an additional payment has been made by the continuance of an Event of Default Borrower pursuant to this Section 10.1 5.04 or 10Section 13.05 of this Agreement, then such Lender or such Agent, as the case may be, shall reimburse the Borrower for such amount (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 5.04 and Section 13.05 with respect to the tax giving rise to such refund), net of all out-of-pocket expenses of such Agent or such Lender (including any Taxes imposed on the receipt of such refund) and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that the Borrower, upon the request of such Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Agent or such Lender in the event such Agent or such Lender is required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require any Agent or any Lender to make available its tax returns (or any other information relating to its taxes which it deems confidential) to the Borrower or any other Person.
Appears in 1 contract
Sources: Plan Support Agreement (Molecular Insight Pharmaceuticals, Inc.)
Net Payments. (i) All payments made by the Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (Ai) any net income taxes, taxes and franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, Lender and (Bii) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”"TAXES") except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if . If any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the such Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent and such Lender an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative AgentAgent and such Lender, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for Lender (free and clear of any such Taxes, whether assessed against the Borrower, the Administrative Agent or such Lender) will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iiiii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent or such Lender, as applicable, with the documentation referred to in Section 5.3(a)(ii)(C5.3(a) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iviii) The Borrower’s 's obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of the Revolving Credit Loans and all other amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.5.
(c) Each Non-U.S. Lender shall:
(i) deliver to the Borrower and the Administrative Agent two copies of either (x) in the case of a Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of "portfolio interest", United States Internal Revenue Service Form W-8BEN, (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign corporation related to the Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the Borrower under this Agreement;
(ii) deliver to the Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested in writing by the Borrower or the Administrative Agent; unless, in any such case, any change in treaty, law or regulation, has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 12.6 or a Lender pursuant to Section 12.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.3(c), provided that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased.
(d) If the Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with the Borrower in challenging such taxes at the Borrower's expense if so requested by the Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of, or credit for, a Tax for which a payment has been made by the Borrower pursuant to this Agreement, which refund or credit in the good faith judgment of such Lender or the Administrative Agent, as the case may be, is attributable to such payment made by the Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse the Borrower for such amount as the Lender or the Administrative Agent, as the case may be, determines to be the proportion of the refund or credit as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund or credit that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither such Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the Borrower in connection with this paragraph (d) or any other provision of this Section 5.3.
Appears in 1 contract
Net Payments. (ia) All Subject to the following sentence, all payments made by or on behalf of the Borrower under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income or Taxes (including Other Taxes) other than Excluded Taxes. If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), withholdings (“Non-Excluded Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunderunder this Agreement, the Borrower shall:
(A) promptly notify shall increase the Administrative Agent of amounts payable to such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under to the extent necessary to yield to such Agent or such Lender (after payment of all Non-Excluded Taxes, including any such Non-Excluded Taxes imposed on additional amounts payable hereunder) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Section 5.3(a));
(C) Agreement. Whenever any Non-Excluded Taxes are payable by the Borrower, as promptly as possible thereafter, forward the Borrower shall send to the Administrative Agent for its own account or for the account of such Secured Party, as the case may be, a certified copy of an original official receipt (or a certified copy), or other documentation reasonably evidence acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually acting reasonably) received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) Borrower showing payment thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the relevant Governmental Authority when due any Taxes that it was required appropriate taxing authority or fails to deduct or withhold under this Section 5.3(a) in respect of any payment remit to or for the benefit of the Administrative Agent the required receipts or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when other required to do sodocumentary evidence, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender Agents and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative any Agent or such any Lender as a result of any such failure.
(iv) . In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law. The Borrower’s obligations under agreements in this Section 5.3(a5.04(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Notwithstanding Each Lender that is not organized under the laws of the United States of America or any state thereof (a “Non-U.S. Lender”) shall:
(i) deliver to the Borrower and the Administrative Agent two copies of either (A) in the case of Non-U.S. Lender claiming exemption from U.S. federal withholding tax under Section 5.3(a871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign corporation related to the Borrower (within the meaning of Section 864(d)(4) of the Code)), or (B) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. federal withholding tax on payments by the Borrower under this Agreement;
(ii) deliver to the Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) promptly upon the obsolescence or invalidity of any form previously delivered by such Non-U.S. Lender; and
(iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the Borrower or the Administrative Agent, unless in any such case any change in Applicable Laws has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the Borrower and the Administrative Agent, in which case such Lender shall not be required to indemnify provide any form under subparagraphs (i) or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement (ii) above. Each Person that shall become a Participant pursuant to Section 5.3(a14.06 or a Lender pursuant to Section 14.06 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.04(b) above or (c), as applicable; provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding any other provision of this paragraph, a Non-U.S. Lender, except if Lender shall not be required to deliver any such Revolving Credit Loans were assigned, participated or transferred form pursuant to this paragraph that such Non-U.S. Lender is not legally able to deliver.
(c) Each Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the request time or times prescribed by Applicable Law or reasonably requested by the Borrower, such properly completed and executed documentation prescribed by Applicable Law as will permit such payments to be made without withholding or at a reduced rate; provided, that such Lender is legally entitled to complete, execute and deliver such documentation and in such Lender’s judgment such completion, execution or submission would not materially prejudice the legal position of such Lender.
(d) The Borrower shall indemnify the Agent and each Lender within 10 days after written demand therefor, for the full amount of any Non-Excluded Taxes or Other Taxes paid by the Agent or such Lender, as the case may be, on or with the consent respect to any payment by or on account of any obligation of the Borrower hereunder (including Non-Excluded Taxes or were assignedOther Taxes imposed or asserted on or attributable to amounts payable under this Section) and any penalties, participated interest, additions to tax and reasonable expenses arising therefrom or transferred to with respect thereto, whether or not such Non-U.S. Excluded Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender following or by the occurrence Agent on its own behalf or on behalf of and during a Lender shall be conclusive absent manifest error.
(e) If any Lender or any Agent determines, in its sole discretion, that it has received a refund of a tax for which an additional payment has been made by the continuance of an Event of Default Borrower pursuant to this Section 10.1 5.04 or 10Section 14.05 of this Agreement, then such Lender or such Agent, as the case may be, shall reimburse the Borrower for such amount (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 5.04 and Section 14.05 with respect to the tax giving rise to such refund), net of all out-of-pocket expenses of such Agent or such Lender (including any Taxes imposed on the receipt of such refund) and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that the Borrower, upon the request of such Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Agent or such Lender in the event such Agent or such Lender is required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require any Agent or any Lender to make available its tax returns (or any other information relating to its taxes which it deems confidential) to the Borrower or any other Person.
Appears in 1 contract
Sources: Credit Agreement (Molecular Insight Pharmaceuticals, Inc.)
Net Payments. (i) All payments of principal of and premium, if any, interest and any other amounts on, or in respect of, the Securities of any series shall be made by the Borrower under this Agreement shall be made free and clear ofGuarantor without withholding or deduction at source for, and without deduction or withholding for or on account of, any current present or future income or other taxes, levies, impostsfees, duties, chargesassessments or governmental charges of whatever nature imposed or levied by or on behalf of The Netherlands (the “taxing jurisdiction”) or any political subdivision or taxing authority thereof or therein, unless such taxes, fees, deductions duties, assessments or withholdings, now or hereafter imposed, levied, collected, governmental charges are required to be withheld or assessed deducted by any Governmental Authority, excluding (Ai) any net income taxes, franchise taxes the laws (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (Bregulations or ruling promulgated thereunder) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the taxing jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including, without limitation, a holding by a court of competent jurisdiction or by a taxing authority in a taxing jurisdiction or any political subdivision thereof). If a withholding or deduction at source is required, the Guarantor shall, subject to certain limitations and exceptions set forth below, pay to the Holder of any such Security such additional amounts as may be necessary so that every net payment of principal, premium, if any, interest or any other amount made to such Holder, after such withholding or deduction, shall not be less than the amount provided for in such Security and this Indenture to be then due and payable; provided, however, that the Guarantor shall not be required to make payment of such additional amounts for or on account of:
(a) any tax, fee, duty, assessment or governmental charge of whatever nature which would not have been imposed but for the fact that such Holder: (A) was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the relevant taxing jurisdiction or any political subdivision thereof or otherwise had some connection with the relevant taxing jurisdiction other than any such connection arising solely from by reason of the Administrative Agent mere ownership of, or such Lender having executed, delivered or performed its obligations or received a receipt of payment under, such Security; (B) presented such Security for payment in the relevant taxing jurisdiction or enforcedany political subdivision thereof, this Agreementunless such Security could not have been presented for payment elsewhere; or (C) presented such Security more than thirty (30) days after the date on which the payment in respect of such Security first became due and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending officeprovided for, whichever is later, except to the extent that the Holder would have been entitled to such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to if it had presented such withholding tax pursuant to this Section 5.3(a), Security for payment on any day within such period of thirty (“Taxes”30) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirementdays;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.
Appears in 1 contract
Sources: First Supplemental Indenture (Royal Bank of Scotland Group PLC)
Net Payments. (ia) All payments made by the Borrower under this Agreement or under any Credit Document shall be made free without set-off or counterclaim and clear of, and without in such amounts as may be necessary in order that all such payments (after deduction or withholding for or on account of, of any current present or future income or other taxes, levies, imposts, duties, charges, fees, deductions duties or withholdings, now or hereafter imposed, levied, collected, withheld or assessed other charges of whatsoever nature imposed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax government or any political subdivision or taxing authority thereof or therein (thereof, other than any such connection arising solely from tax on the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account net income of a Lender at Bank pursuant to the time income tax laws of the United States or jurisdictions where such Lender becomes a party Bank's principal or lending office is located (collectively, such non-excluded taxes are hereinafter referred to as "Non-Excluded Taxes")) shall not be less than the amounts otherwise specified to be paid under this Agreement (other than pursuant to an assignment request by and/or any Credit Document. If the Borrower under Section 12.7) or designates a new lending office, except is required by law to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such make any deduction or withholding is required by on account of Non-Excluded Taxes from any applicable lawpayment due hereunder or under the Notes, as modified by then (i) the administrative practice of any relevant Borrower shall timely remit such Taxes to the Governmental Authority then in effect.
imposing the same and (ii) Subject the amount payable hereunder or under the Notes will be increased to Section 5.3(b)such amount which, if any after deduction from such Taxes are required to be withheld from any increased amount of all amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including therefrom, will not be less than the full amount otherwise due and payable. A certificate as to the calculation of Taxes required to be deducted or withheld from any additional amount paid by the Borrower amounts payable to the Administrative Agent or such Lender a Bank under this Section 5.3(a));
(C) as promptly as possible thereafter, forward 3.04 submitted to the Administrative Agent an official receipt (or a certified copy)Borrower by such Bank shall, or other documentation reasonably acceptable absent manifest error, be final, conclusive and binding for all purposes upon all parties hereto. With respect to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after each deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect on account of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do soNon-Excluded Taxes, the Borrower shall forthwith on demand fully indemnify promptly furnish to each Bank such certificates, receipts and other documents as may be required (in the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result judgment of such failure.
(ivBank) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all amounts payable hereunderto establish any tax credit to which such Bank may be entitled.
(b) Notwithstanding Without prejudice to the provisions of paragraph (a) of this Section 5.3(a)3.04, if any Bank, or the Agent on its behalf, is required to make any payment on account of Non-Excluded Taxes on or in relation to any sum received or receivable under this Agreement and/or the other Credit Documents by such Bank, or the Agent on its behalf, or any liability for Non-Excluded Taxes in respect of any such payment is imposed, levied or assessed against any Bank, or the Agent on its behalf, the Borrower will promptly indemnify such Person against such Non-Excluded Tax payment or liability, together with any interest, penalties and expenses (including counsel fees and expenses) payable or incurred in connection therewith. The Borrower shall also reimburse each Bank, upon the written request of such Bank, for taxes imposed on or measured by the net income of such Bank pursuant to the laws of the jurisdiction in which the principal office or lending office of such Bank is located or under the laws of any political subdivision or taxing authority of any such jurisdiction as such Bank shall determine are payable by such Bank in respect of Non-Excluded Taxes paid to or on behalf of such Bank pursuant to this Section 3.04. For purposes of this Section, the term "Non-Excluded Taxes" includes interest, penalties and expenses payable or incurred in connection therewith. A certificate by such Bank, or the Agent on its behalf, as to the calculation and amount of such payments shall, absent manifest error, be final, conclusive and binding upon all parties hereto for all purposes. With respect to each deduction or withholding for or on account of any Non-Excluded Taxes, the Borrower shall not promptly furnish to each Bank such certificates, receipts and other documents as may be required (in the judgment of such Bank) to indemnify or pay establish any additional amounts in respect tax credit to which such Bank may be entitled.
(c) Each Bank organized under the laws of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any a jurisdiction outside the United States (hereinafter, a "Non-U.S. LenderBank") shall, except on or before the date the first payment is due from Borrower on any Borrowings made hereunder and from time to time thereafter if requested in writing by the Borrower (but only so long as such Bank remains lawfully able to do so), provide the Borrower with IRS Form W-8, Form 1001, or Form 4224, as appropriate, or any such Revolving Credit Loans were assignedsuccessor form prescribed by the IRS, participated or transferred to indicating that such Non-U.S. Lender at Bank is entitled to complete or partial exemption from withholding on all payments to be received by it under this Agreement. If the request or form provided by such Bank indicates that such Bank is entitled to benefits under an income tax treaty to which the United States is a party and which reduces the rate of the withholding tax on payments made hereunder below the U.S. statutory rate then in effect, such reduced withholding tax will be included in "Non-Excluded Taxes" as defined in this Section 3.04.
(d) For any period with respect to which a Non-U.S. Bank has failed to provide the Borrower with the consent appropriate form (unless such failure is due to a change in treaty, law or regulation occurring subsequent to the date of the Borrower or were assignedthis Agreement), participated or transferred to such Non-U.S. Lender following Bank shall not be entitled to indemnification under Section 3.04(a) or 3.04(b) with respect to withholding taxes imposed by the occurrence United States; provided, however, that should a Bank which is otherwise exempt from or subject to a reduced rate of and during withholding tax become subject to Non-Excluded Taxes because of its failure to deliver a form required hereunder, the continuance Borrower shall take such steps as such Bank shall reasonably request to assist such Bank to recover such Non-Excluded Taxes.
(e) In the event a Non-U.S. Bank at the time of an Event assignment is entitled to the benefit of Default payments pursuant to Section 10.1 3.04(a) or 10Section 3.04(b), the assignee of such Non-U.S. Bank shall be entitled to the same benefits (including further benefit of payments that may arise with respect to such assignee) that would have been available to the assignor Non-U.S. Bank in the absence of such assignment, but only to the extent the relevant amounts are incurred by or with respect to such assignee.
(f) If the Borrower is required to pay additional amounts to for the account of any Bank pursuant to this Section 3.04, then such Bank shall take efforts to change the jurisdiction of its lending office so as to eliminate or reduce any such additional amounts which may thereafter accrue if such change would not, in the sole judgment of such Bank, result in any cost to such Bank.
(g) Nothing contained in this Section 3.04 shall require any Bank to make available any of its tax returns or any other information that it deems to be confidential or proprietary.
Appears in 1 contract
Net Payments. (i) All payments made by the Borrower under this Agreement of principal of, and interest on, the Loans and all other amounts payable hereunder shall be made free and clear of, of and without deduction or withholding for or on account of, any current present or future income income, stamp or other taxesTaxes, levies, impostsfees, duties, charges, fees, deductions withholdings or withholdings, now or hereafter imposed, levied, collected, withheld or assessed other charges of any nature whatsoever imposed by any Governmental Authoritytaxing authority, excluding (A) other than Taxes imposed on or measured by any Bank's net income taxes, franchise taxes or receipts with respect to payments received hereunder (imposed in lieu of net income taxes) and branch profits taxes imposed on such non-excluded items being called "Charges"). In the Administrative Agent event that any withholding or deduction from any Lender, (B) any such taxes attributable payment to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request be made by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time hereunder is required in respect of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax any Charges pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority rule or regulation, then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shallwill:
(Aa) promptly notify the Administrative Agent of such requirement;
(B) promptly pay directly to the relevant Governmental Authority when due authority the full amount required to be deducted so withheld or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a))deducted;
(Cb) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable satisfactory to the Administrative Agent, Agent evidencing such payment to such Governmental Authorityauthority; and
(Dc) pay to the Administrative Agent or such Lender, in addition to for the payment to which account of the Administrative Agent or such Lender is otherwise entitled under this Agreement, Banks such additional amount or amounts as is are necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, each Bank will equal the full amount the Administrative Agent or such Lender Bank would have received had no such withholding or deduction or withholding been required.
(iii) . If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) Bank receives a refund in respect of any payment Taxes as to which it has been indemnified by the Borrower or for with respect to which the benefit Borrower (or any Person acting on behalf of the Borrower) has paid additional amounts pursuant to this Section 4.8, it shall promptly repay such refund to the Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower (or such Person acting on behalf of the Borrower) under this Section 4.8 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of such Bank or the Administrative Agent, as the case may be; provided, that the Borrower, upon the request of such Bank or the Administrative Agent, agrees to return such refund (together with any penalties, interest or other charges due in connection therewith to the appropriate taxing authority or other Governmental Authority) to such Bank or the Administrative Agent in the event such Bank or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when is required to do sopay or to return such refund to the relevant taxing authority or other Governmental Authority. Each Bank that is organized under the laws of a jurisdiction other than the United States or any state thereof shall, prior to the due date of any payments under the Loans, execute and deliver to the Borrower, on or about the first scheduled payment date in each calendar year, a United States Internal Revenue Service Form 4224 or Form 1001, as may be applicable (or any successor form), appropriately completed. Without prejudice to the survival of any other agreement of the Borrower hereunder or any other document, the agreements of the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under contained in this Section 5.3(a) shall survive satisfaction of the Liabilities and termination of this Agreement and the payment of all amounts payable hereunderAgreement.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.
Appears in 1 contract
Sources: Credit Agreement (Conseco Inc)
Net Payments. (ia) All Any and all payments made by or on behalf of the Borrower or any Guarantor under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding for or on account of, any current Taxes; provided that if the Borrower or future income any Guarantor or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent shall be required by applicable Requirements of Law to deduct or withhold any LenderTaxes from such payments, then (Bi) any the Borrower or such taxes attributable to the failure of Guarantor or the Administrative Agent shall make such deductions or any Lender to comply with Section 5.3(c)withholdings as are reasonably determined in good faith by the Borrower, (C) any such taxes imposed on Guarantor or the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is be required by any applicable lawRequirement of Law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b)the Borrower, if any such Taxes are required to be withheld from any amounts payable to Guarantor or the Administrative Agent Agent, as applicable, shall timely pay the full amount deducted or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay withheld to the relevant Governmental Authority when due within the full amount time allowed and in accordance with applicable Requirements of Law, and (iii) to the extent withholding or deduction is required to be deducted made on account of Indemnified Taxes, the sum payable by the Borrower or withheld such Guarantor shall be increased as necessary so that after making all required deductions and withholdings (including deductions or withholdings of Indemnified Taxes applicable to additional sums payable under this Section 5.4) the Administrative Agent, any Letter of Credit Issuer or any Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made. As soon as practical after any payment of Taxes by any Credit Party to a Governmental Authority as provided in this Section 5.4, the Borrower shall deliver to the Administrative Agent a copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by laws to report such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(b) The Borrower shall timely pay and shall indemnify and hold harmless the Administrative Agent and each Lender with regard to any Other Taxes (whether or not such Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority).
(c) The Borrower shall indemnify and hold harmless the Administrative Agent and each Lender within 15 Business Days after written demand therefor, for the full amount of any Indemnified Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to imposed on the Administrative Agent or such Lender, in addition as the case may be (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 5.4), and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided, that the right to indemnification shall be subject to the notice requirements of Section 2.13. A certificate setting forth in reasonable detail the basis and calculation of the amount of such payment or liability delivered to which the Borrower by a Lender or the Administrative Agent (as applicable) on its own behalf or on behalf of a Lender shall be conclusive absent manifest error.
(d) Each Lender shall deliver to the Borrower and the Administrative Agent, at such time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law and such other reasonably requested information and documentation as will permit the Borrower or the Administrative Agent, as the case may be, to determine (i) whether or not any payments made hereunder or under any other Credit Document are subject to Taxes, (ii) if applicable, the required rate of withholding or deduction, and (iii) such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes in respect of any payments to be made to such Lender by any Credit Party pursuant to any Credit Document or otherwise to establish such Lender’s status for withholding tax purposes in the applicable jurisdiction. In addition, any Lender, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is otherwise subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 5.4(e)(i)(A), (e)(i)(B), (e)(i)(C), (h) and (i) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(e) Without limiting the generality of Section 5.4(d), each Non-U.S. Lender with respect to any Loan made to the Borrower shall, to the extent it is legally entitled to do so:
(i) deliver to the Borrower and the Administrative Agent, on or prior to the date on which the Non-U.S. Lender becomes a party to this Agreement, two copies of (A) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, Internal Revenue Service Form W-8BEN or W-8BEN-E (or any applicable successor form) (together with a certificate in the form attached hereto as Exhibit I representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10% shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower, is not a CFC related to the Borrower (within the meaning of Section 864(d)(4) of the Code) and the interest payments in question are not effectively connected with the United States trade or business conducted by such Lender), (B) Internal Revenue Service Form W-8BEN, Form W-8BEN-E or Form W-8ECI (or any applicable successor form), in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the Borrower under this Agreement, such additional amount (C) Internal Revenue Service Form W-8IMY (or any applicable successor form) and all necessary attachments (including the forms described in clauses (A) and (B) above, as is necessary to ensure that the net amount actually received required) required by applicable law or reasonably requested by the Administrative Agent or the Borrower, or (D) any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States federal withholding tax duly completed together with such Lender, after deduction supplementary documentation as may be prescribed by applicable law to permit the Borrower or withholding for any such Taxes, will equal the full amount the Administrative Agent to determine the withholding or such Lender would have received had no such deduction or withholding been required.required to be made; and
(iiiii) If deliver to the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of and the Administrative Agent two further copies of any such form or certification (or any Lender under this Agreement applicable successor form) on or fails before the date that any such form or certification expires or becomes obsolete or invalid, after the occurrence of any event requiring a change in the most recent form previously delivered by it to furnish the Borrower, and from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent with Agent; unless in any such case any Change in Law has occurred prior to the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith date on demand fully indemnify the Administrative Agent or which any such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not delivery would otherwise be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if that renders any such Revolving Credit Loans were assigned, participated form inapplicable or transferred to would prevent such Non-U.S. Lender at the request or from duly completing and delivering any such form with the consent of the Borrower or were assigned, participated or transferred respect to it and such Non-U.S. Lender following promptly so notifies the Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 13.6 or a Lender pursuant to Section 13.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(e); provided that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased.
(f) If any Lender or the Administrative Agent, as applicable, determines, in its sole discretion, that it has received and retained a refund of an Indemnified Tax for which a payment has been made by the Borrower or any Guarantor pursuant to this Agreement or any other Credit Document, which refund in the good faith judgment of such Lender or the Administrative Agent, as the case may be, is attributable to such payment made by the Borrower or any Guarantor, then such Lender or the Administrative Agent, as the case may be, shall reimburse the Borrower or such Guarantor for such amount (net of all out-of-pocket expenses (including Taxes) of such Lender or the Administrative Agent, as the case may be, and without interest other than any interest received thereon from the relevant Governmental Authority with respect to such refund) as such Lender or the Administrative Agent, as the case may be, determines in its sole discretion to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position (taking into account expenses or any Taxes imposed on the refund) than it would have been in if the payment had not been required; provided that the Borrower or such Guarantor, upon the request of such Lender or the Administrative Agent, agrees to repay the amount paid over to the Borrower or such Guarantor (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Lender or the Administrative Agent in the event such Lender or the Administrative Agent is required to repay such refund to such Governmental Authority. No Lender nor the Administrative Agent shall be obliged to make available its tax returns (or any other information relating to its Taxes that it deems confidential) to any Credit Party in connection with this clause (f) or any other provision of this Section 5.4.
(g) If the Borrower determines that a reasonable basis exists for contesting a Tax, each Lender or the Administrative Agent, as the case may be, shall use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request in challenging such Tax. The Borrower shall indemnify and hold each Lender and the Administrative Agent harmless against any out-of-pocket expenses incurred by such Person in connection with any request made by the Borrower pursuant to this Section 5.4(g). Nothing in this Section 5.4(g) shall obligate any Lender or the Administrative Agent to take any action that such Person, in its sole judgment, determines (i) may result in a material detriment to such Person, (ii) may subject such Person to any material unreimbursed cost or expense, (iii) may materially prejudice the legal or commercial position of such Person, or (iv) that such Person is not legally entitled to take.
(h) The Administrative Agent and each Lender that is a United States person under Section 7701(a)(30) of the Code (each, a “U.S. Lender”) shall deliver to the Borrower and the Administrative Agent two Internal Revenue Service Forms W-9 (or substitute or successor form), properly completed and duly executed, certifying that such Person is exempt from United States federal backup withholding (i) on or prior to the date it becomes a party to this Agreement, (ii) on or before the date that such form expires or becomes obsolete or invalid, (iii) after the occurrence of a change in Person’s circumstances requiring a change in the most recent form previously delivered by it to the Borrower and during the continuance Administrative Agent, and (iv) from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent.
(i) If a payment made to any Lender or the Administrative Agent under this Agreement or any other Credit Document would be subject to U.S. federal withholding tax imposed by FATCA if such Person were to fail to comply with the applicable reporting requirements of an Event FATCA (including those contained in Section 1471(b) or 1472(b) of Default pursuant the Code, as applicable), such Person shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 10.1 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or 10the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA, to determine that such Person has or has not complied with such Person’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this Section 5.4(i), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. The Lenders and the Administrative Agent shall, to the extent they are legally entitled to do so, deliver to the Borrower (and the Lenders shall deliver to the Administrative Agent) additional documentation on or before the date that any such previously delivered documentation under this Section 5.4(i) expires or becomes obsolete or invalid and after the occurrence of any event requiring a change in the most recent documentation previously delivered by it to the Borrower and the Administrative Agent, and from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent, as applicable.
Appears in 1 contract
Net Payments. (i) All payments made by any Borrower of principal of, and interest on, the Borrower under this Agreement Loans and all other amounts payable hereunder shall be made free and clear of, of and without deduction or withholding for or on account of, any current present or future income income, stamp or other taxesTaxes, levies, impostsfees, duties, charges, fees, deductions withholdings or withholdings, now or hereafter imposed, levied, collected, withheld or assessed other charges of any nature whatsoever imposed by any Governmental Authoritytaxing authority, excluding (A) other than Taxes imposed on or measured by any Bank's net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower receipts with respect to payments received hereunder (such nonexcluded items being called "Charges"). In the event that any withholding tax or deduction from any payment to be made by any Borrower hereunder is required in respect of any Charges pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority rule or regulation, then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shallwill:
(Aa) promptly notify the Administrative Agent of such requirement;
(B) promptly pay directly to the relevant Governmental Authority when due authority the full amount required to be deducted so withheld or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a))deducted;
(Cb) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable satisfactory to the Administrative Agent, Agent evidencing such payment to such Governmental Authority; andauthority;
(Dc) pay to the Administrative Agent or such Lender, in addition to for the payment to which account of the Administrative Agent or such Lender is otherwise entitled under this Agreement, Banks such additional amount or amounts as is are necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, each Bank will equal the full amount the Administrative Agent or such Lender Bank would have received had no such withholding or deduction or withholding been required.; and
(iiid) If the Borrower fails to pay to the relevant Governmental Authority when due if any Taxes that it was required to deduct or withhold under this Section 5.3(a) Bank receives a refund in respect of any payment Taxes as to which it has been indemnified by any Borrower or for with respect to which any Borrower (or any Person acting on behalf of such Borrower) has paid additional amounts pursuant to this Section 4.7, it shall promptly repay such refund (but only to the benefit extent of indemnity payments made, or additional amounts paid, by such Borrower (or such Person acting on behalf of such Borrower) under this Section 4.7 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of such Bank or the Administrative Agent, as the case may be; provided, that such Borrower, upon the request of such Bank or the Administrative Agent, agrees to return such refund (together with any penalties, interest or other charges due in connection therewith to the appropriate taxing authority or other Governmental Authority) to such Bank or the Administrative Agent in the event such Bank or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when is required to do sopay or to return such refund to the relevant taxing authority or other Governmental Authority. Each Bank that is organized under the laws of a jurisdiction other than the United States shall, prior to the due date of any payments under the Loans, execute and deliver to the Borrowers, on or about the first scheduled payment date in each calendar year, a United States Internal Revenue Service Form 4224 or Form 1001, as may be applicable (or any successor form), appropriately completed. Without prejudice to the survival of any other agreement of the Borrowers hereunder or any other document, the Borrower shall forthwith on demand fully indemnify agreements of the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under Borrowers contained in this Section 5.3(a) shall survive satisfaction of the Liabilities and termination of this Agreement and the payment of all amounts payable hereunderAgreement.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.
Appears in 1 contract
Sources: Credit Agreement (Hilbert Stephen C)
Net Payments. (ia) All .
(a) Except as required by Applicable Law, all payments made by or on behalf of the Borrower under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental AuthorityAuthority (including any interest, additions to tax and penalties) (collectively, “Taxes”), excluding in the case of each Lender and each Agent and except as otherwise provided in Section 5.4(f), (A) any net income taxes, Taxes (and franchise taxes (Taxes imposed in lieu of net income taxesTaxes) and branch profits taxes that would not have been imposed on the Administrative such Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as but for a result of a current present or former connection between the Administrative such Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax Tax or any political subdivision or taxing authority Governmental Authority thereof or therein (other than any such connection arising solely from the Administrative such Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, received or perfected a security interest under, or engaged in any other transactions pursuant to, this AgreementAgreement or any other Credit Document), (B) any branch profits Taxes imposed by the United States of America or any similar Tax imposed by any other jurisdiction described in clause (A) and (DC) U.S. federal any withholding taxes imposed on Tax pursuant to FATCA (all non-excluded Taxes, “Non-Excluded Taxes” and all such excluded Taxes, “Excluded Taxes”). If any Taxes are required to be withheld by a Withholding Agent from any amounts payable under this Agreement or any other Credit Document, the applicable Withholding Agent shall so withhold (pursuant to the information and documentation to be delivered pursuant to Sections 5.4(d), 5.4(e) and 5.4(g)) and shall remit the amount withheld to the appropriate taxing authority. In addition, where an amount has been withheld in respect of a Non-Excluded Tax, the applicable Credit Party shall increase the amounts payable to the Administrative Agent or such Lender to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes or Other Taxes including those applicable to any amounts payable under this Section 5.4) interest or any such other amounts payable hereunder at the rates or in the amounts specified in such Credit Document. Whenever any Taxes are payable by any Credit Party, as promptly as possible thereafter the applicable Credit Party shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt, if available (or other evidence acceptable to such Lender, acting reasonably) received by the applicable Credit Party showing payment thereof.
(b) In addition, each Credit Party shall pay, or at the option of the Administrative Agent timely reimburse it for the payment for, any present or future stamp, documentary, filing, mortgage, recording, excise, property or intangible taxes (including any interest, additions to tax and penalties) that arise from any payment made by such Credit Party hereunder or under any other Credit Documents or from the execution, delivery or registration or recordation of, performance under, or otherwise with respect to, this Agreement or the other Credit Documents (hereinafter referred to as “Other Taxes”).
(i) Subject to Section 5.4(f), the Credit Parties shall indemnify each Lender and each Agent for and hold them harmless against the full amount of Non-Excluded Taxes and Other Taxes, (and for the full amount of Non-Excluded Taxes and Other Taxes imposed or asserted by any jurisdiction on any additional amounts or indemnities payable under this Section 5.4) imposed on or paid by such Lender or such Agent (as the case may be) and any liability (including penalties, additions to tax, interest and expenses) regardless of whether any such Taxes are correctly or legally asserted and arising therefrom or with respect thereto; provided that if any claim pursuant to this Section 5.4(c) is made later than 180 days after the date on which the relevant Lender or Agent had actual knowledge of the relevant Non-Excluded Taxes or Other Taxes, then the Credit Parties shall not be required to indemnify the applicable Lender or Agent for any interest or penalties which accrue in respect of such Non-Excluded Taxes or Other Taxes after the 180th day. This indemnification shall be made within 30 days from the date such Lender or such Agent (as the case may be) makes written demand therefor.
(ii) Each Lender shall, and does hereby, severally indemnify, and shall make payment in respect thereof within 30 days after demand therefor, (x) the Administrative Agent against any Non-Excluded Taxes attributable to such Lender (but only to the extent that any Credit Party has not already indemnified the Administrative Agent for such Non-Excluded Taxes and without limiting the obligation of Credit Parties to do so), (y) the Administrative Agent and the Credit Parties, as applicable, against any Taxes attributable to such L▇▇▇▇▇’s failure to comply with the provisions of Section 13.6(d)(ii) relating to the maintenance of a Participant Register and (z) the Administrative Agent and the Credit Parties, as applicable, against any Excluded Taxes attributable to such Lender that are payable or paid by the Administrative Agent or the Credit Parties in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Credit Document against any amount due to the Administrative Agent under this clause (ii).
(d) Each Lender shall, at such times as are reasonably requested by the Borrower or the Administrative Agent, provide the Borrower and the Administrative Agent with any documentation prescribed by any Applicable Law or reasonably requested by the Borrower or the Administrative Agent (i) as will permit such payments to be made without, or at a reduced rate of, withholding or (ii) as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to withholding or information reporting requirements. Each such Lender shall, whenever a lapse in time or change in circumstances renders such documentation obsolete, expired or inaccurate in any material respect, deliver promptly to the Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrower or the Administrative Agent) or promptly notify the Borrower and the Administrative Agent of its inability to do so. Unless the Borrower or the Administrative Agent has received forms or other documents satisfactory to it indicating that payments under any Credit Document to or for a Lender are not subject to withholding Tax or are subject to such Tax at a rate reduced by an applicable tax treaty, the Borrower or the Administrative Agent (as applicable) may withhold amounts required to be withheld by Applicable Law from such payments at the time applicable statutory rate. Notwithstanding anything forgoing to the contrary, the completion, execution and submission of such documentation (other than such documentation set forth in Section 5.4(d)(i), Section 5.4(e) and Section 5.4(g) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. Without limiting the foregoing to the extent permitted by law, each Lender that is not a United States person within the meaning of Section 7701(a)(30) of the Code (a “Non-U.S. Lender”) shall:
(i) deliver to the Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent) two originals of either (w) in the case of Non-U.S. Lender claiming exemption from U.S. federal withholding Tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN or W-8BEN-E (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign corporation related to the Borrower (within the meaning of Section 864(d)(4) of the Code) substantially in the form of Exhibit N (a “United States Tax Compliance Certificate”)), (x) with respect to any other than pursuant applicable payments under this Agreement, United States Internal Revenue Service Form W-8BEN, W-8BEN-E or Form W-8ECI, (y) to an assignment request the extent a Non-U.S. Lender is not the Beneficial Owner (for example, where the Non-U.S. Lender is a partnership or a participating Lender), United States Internal Revenue Service Form W-8IMY (or any successor forms) of the Non-U.S. Lender, accompanied by a Form W-8ECI, W-8BEN, W-8BEN-E, United States Tax Compliance Certificate, Form W-9, Form W-8IMY or any other required information from each Beneficial Owner, as applicable (provided that, if one or more Beneficial Owners are claiming the portfolio interest exemption, the United States Tax Compliance Certificate may be provided by such Non-U.S. Lender on behalf of such Beneficial Owner) or (z) two properly completed and duly signed original copies of any other form prescribed by applicable U.S. federal income Tax laws (including the United States Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. federal withholding Tax on payments by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.Agreement; and
(ii) Subject deliver to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Borrower and the Administrative Agent two further originals of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete or inaccurate and promptly after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender hereunder, the Borrower shall:
(A) from duly completing and delivering any such form with respect to it. Each Lender shall promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to and the Administrative Agent at any time it determines that it is no longer in a position to provide any previously delivered form or such Lender under certification to the Borrower or the Administrative Agent. Notwithstanding anything to the contrary in this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy5.4(d), a Lender is not required to deliver any form or other documentation reasonably acceptable that it is not legally eligible to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been requireddeliver.
(iiie) If the Borrower fails a payment made to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any a Lender under this Agreement or fails any other Credit Document would be subject to furnish the Administrative Agent U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the documentation referred to applicable reporting requirements of FATCA (including those contained in Section 5.3(a)(ii)(C1471(b) when required to do soor 1472(b) of the Code, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or as applicable), such Lender for any incremental taxesshall deliver to the Withholding Agent, interest, costs at the time or penalties that may become payable times prescribed by Applicable Law and at such time or times reasonably requested by the Administrative Withholding Agent, such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Withholding Agent or as may be necessary for the Withholding Agent to comply with its obligations under FATCA, to determine (i) whether such Lender as a result has complied with such L▇▇▇▇▇’s obligations under FATCA or (ii) the amount, if any, to deduct and withhold from such payment. Solely for purposes of such failurethis Section 5.4(e), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(ivf) The Borrower’s obligations under this Section 5.3(a) No Credit Party shall survive the termination of this Agreement and the payment of all amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify any Lender, Beneficial Owner or Agent pursuant to Section 5.4(c) or to pay any additional amounts to any Lender, Beneficial Owner or Agent, pursuant to Section 5.4(a) in respect of (i) U.S. federal withholding tax Taxes imposed under any Applicable Law in effect on the date such Lender or such Beneficial Owner acquired its interest in the applicable Loan, Commitment or Letter of Credit or changed its lending office; provided that this Section 5.4(f) shall not apply to any amount payable under this Agreement pursuant to Section 5.3(athe extent that (x) above to any Non-U.S. Lender, except if any the indemnity payments or additional amounts such Revolving Credit Loans were assigned, participated Lender (or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.Beneficial
Appears in 1 contract
Net Payments. (ia) All payments made by the Borrower or on behalf of any Credit Party under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding for or on account of, of any current or future income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending officeTaxes, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is as required by Applicable Law. If any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent by or on behalf of any Credit Party under this Agreement or any Lender hereunderother Credit Document (as determined in the good faith discretion of the applicable withholding agent), then the Borrower shall:
(A) promptly notify applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the Administrative Agent of such requirement;
(B) promptly pay full amount deducted or withheld to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by in accordance with Applicable Law, and if such Tax is a Non-Excluded Tax, then the Borrower shall increase the amounts payable to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward applicable Recipient to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing extent necessary so that after such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any has been made (including such Taxes, will deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the full amount the Administrative Agent or such Lender sum it would have received had no such deduction or withholding been required.
(iii) If made. Whenever any Taxes are paid by a Credit Party pursuant to this Section 5.04(a), as soon as practicable thereafter, the Borrower fails shall send to the Administrative Agent the original or a certified copy of a receipt issued by the relevant Governmental Authority, a copy of the return reporting such payment, or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Borrower shall indemnify the Agents and the Lenders for any Non-Excluded Taxes (including Non- Excluded Taxes imposed or asserted on or attributable to amounts payable under this Section 5.04(a)) that are paid by any Agent or Lender or that are required to be withheld or deducted from a payment to any Agent or Lender and any reasonable expenses arising therefrom or with respect thereto, whether or not such Non-Excluded Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority, within ten (10) days after demand therefor. A certificate as to the amount of such payment or liability delivered to the Borrower by an Agent or Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority when due any Taxes that it was required to deduct in accordance with Applicable Law, or withhold under this Section 5.3(a) in respect of any payment to or for at the benefit option of the Administrative Agent or Agent, shall timely reimburse it for the payment of any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to Other Taxes. The agreements in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a5.04(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.
Appears in 1 contract
Sources: Credit Agreement (Grindr Inc.)
Net Payments. (ia) All payments made by the Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (Ai) any net income taxes, taxes and franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, Lender and (Bii) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if . If any such Taxes non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings ("NON-EXCLUDED TAXES") are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower amounts so payable to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward shall be increased to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable extent necessary to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay yield to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, (after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender hereunder at the request rates or with in the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.amounts specified in
Appears in 1 contract
Net Payments. (i) All payments made by the Parent or any Co-Borrower under this Agreement of principal of, and interest on, the Loans and all other amounts payable hereunder shall be made free and clear of, of and without deduction or withholding for or on account of, any current present or future income income, stamp or other taxesTaxes, levies, impostsfees, duties, charges, fees, deductions withholdings or withholdings, now or hereafter imposed, levied, collected, withheld or assessed other charges of any nature whatsoever imposed by any Governmental Authoritytaxing authority, excluding other than Income Taxes (A) such non-excluded items being called "Charges"). In the event that any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on withholding or deduction from any payment to be made by the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent Parent or such Lender and the jurisdiction Co-Borrower hereunder is required in respect of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than Charges pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by rule or regulation, then the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any Parent or such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Co-Borrower shallwill:
(Aa) promptly notify the Administrative Agent of such requirement;
(B) promptly pay directly to the relevant Governmental Authority when due authority the full amount required to be deducted so withheld or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a))deducted;
(Cb) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable satisfactory to the Administrative Agent evidencing such payment to such authority; and
(c) pay to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to for the Administrative Agent or such Lender, in addition to account of the payment to which the Administrative Agent or such Lender is otherwise entitled under this AgreementLenders, such additional amount or amounts as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, each Lender will equal the full amount the Administrative Agent or such Lender would have received had no such withholding or deduction or withholding been required.
(iii) If . Upon the Borrower fails to pay request of the Parent or the Administrative Agent, each Lender that is organized under the laws of a jurisdiction other than the U.S. shall, prior to the relevant Governmental Authority when due date of any Taxes that it was required payments under the Loans or LC Obligations, execute and deliver to deduct the Parent and the Administrative Agent, on or withhold under about the first scheduled payment date in each calendar year, a United States Internal Revenue Service Form 4224 or Form 1001, as may be applicable (or any successor form), appropriately completed. Without prejudice to the survival of any other agreement of the Parent hereunder or any other document, the agreements of the Parent contained in this Section 5.3(a) in respect of any payment to or for the benefit shall survive satisfaction of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the Liabilities and termination of this Agreement and until the payment termination of all amounts payable hereunderstatutes of limitations applicable thereto.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.
Appears in 1 contract
Net Payments. (ia) All payments made by or on account of any obligation of any Loan Party under any Loan Document will be made without recoupment, setoff, counterclaim, or other defense. To the Borrower extent permitted by applicable law, all payments under this Agreement any Loan Document (including, without limitation, payments on account of principal and interest, and fees) shall be made by or on account of any obligation of any Loan Party free and clear of, of and without deduction or withholding for for, or on account of, any current Taxes. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires an applicable Withholding Agent to deduct or future income withhold any Tax from any payment by or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at any obligation of any Loan Party under any Loan Document, then the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that applicable Withholding Agent shall make such deduction or withholding is required by any applicable law, as modified by and shall timely pay the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be full amount deducted or withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due in accordance with applicable law and, to the full amount required to be deducted extent such Tax is an Indemnified Tax, then the applicable Loan Party shall pay such additional amounts as necessary so that after such deduction or withheld withholding has been made (including the full amount of Taxes required such deductions and withholdings applicable to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender sums payable under this Section 5.3(a4.7(a));
(C) as promptly as possible thereafter, forward the applicable Recipient receives, in aggregate, an amount equal to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender sum it would have received had no such deduction or withholding been requiredmade. Each Loan Party shall deliver to Administrative Agent within 30 days after it has made any such payment to the applicable Governmental Authority an original or certified receipt issued by such Governmental Authority (or other evidence reasonably satisfactory to Administrative Agent) evidencing the payment to such Governmental Authority of all amounts so required to be deducted or withheld from such payment.
(iiib) If the Borrower fails to The Loan Parties shall timely pay to the relevant Governmental Authority when due in accordance with applicable law, or at the option of Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c) The Loan Parties shall severally indemnify and hold harmless each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes that it was required (including Indemnified Taxes imposed or asserted on or attributable to deduct or withhold amounts payable under this Section 5.3(a4.7) in payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided, however, that if a Recipient does not notify the applicable Borrower of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations indemnification claim under this Section 5.3(a4.7(c) shall survive within 120 days after such Recipient has received written notice of the termination claim of this Agreement and the payment of all amounts payable hereunder.
(b) Notwithstanding Section 5.3(a)a Governmental Authority giving rise to such indemnification claim, the Borrower Loan Parties shall not be required to indemnify such Recipient for any incremental interest or pay penalties resulting from such Recipient’s failure to notify the applicable Borrower within such 120-day period. A certificate delivered to the applicable Borrower (showing in reasonable detail the basis for such calculation) as to the amount of such payment by a Recipient (with a copy to Administrative Agent if such Recipient is not Administrative Agent), absent manifest error, shall be final, conclusive, and binding upon on all parties.
(i) Subject to Section 4.7(e), each Lender shall deliver to the applicable Borrower and Administrative Agent, at such times as are reasonably requested by such Borrower or Administrative Agent, any additional amounts documentation prescribed by law or information required under any administrative policy or any relevant Governmental Authority, or reasonably requested by such Borrower or Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or reduction in, any withholding Tax with respect to any payments to be made to such Lender under any Loan Document or otherwise required or reasonably necessary to establish such Lender’s status for withholding tax or information reporting purposes in an applicable jurisdiction. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in this Section 4.7(d) or (e) or information expired, obsolete or inaccurate in any material respect, deliver promptly to the applicable Borrower and Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the applicable withholding agent) or promptly notify such Borrower and Administrative Agent of its inability to do so. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 4.7(d)(ii)(A), (B) and (C) below or of any documentation requested pursuant to clause (d)(iii) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, with respect to each Lender receiving payments in respect of withholding tax applicable any Loans, Letters of Credit, or Commitments provided to any amount payable under this Agreement pursuant to Section 5.3(aU.S. Borrower:
(A) above to any each such Lender, other than a Non-U.S. Lender, except if shall deliver to U.S. Borrower and Administrative Agent on or before the date on which it becomes a party to this Agreement, two duly executed, properly completed originals or copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax,
(B) each such Lender that is a Non-U.S. Lender entitled under the Code or any applicable treaty to an exemption from or reduction of U.S. federal withholding Tax with respect to any payments hereunder or under any other Loan Document shall deliver to U.S. Borrower and Administrative Agent (in such Revolving Credit Loans were assigned, participated number of copies as shall be requested by the recipient) on or transferred prior to the date on which such Non-U.S. Lender at the request or with the consent becomes a Lender under this Agreement, whichever of the Borrower following is applicable:
(I) duly executed, properly completed originals of IRS Form W-8BEN or were assignedW-8BEN-E or any successor thereto claiming eligibility for benefits of an income tax treaty to which the United States is a party;
(II) duly executed, participated properly completed originals of IRS Form W-8ECI or transferred any successor thereto;
(III) in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate (a “U.S. Tax Compliance Certificate”), in substantially the form of Exhibit 4.7(d)-1, to the effect that (i) such Non-U.S. Lender following is not (A) a “bank” within the occurrence meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of U.S. Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and (ii) interest payments on the Loans are not effectively connected with the Non-U.S. Lender’s conduct of a U.S. trade or business, and (y) duly executed, properly completed copies of IRS Form W-8BEN or W-8BEN-E;
(IV) to the extent a Non-U.S. Lender is not the beneficial owner (for example, where the Non-U.S. Lender is a partnership or a participating Lender), duly executed, properly completed originals of IRS Form W-8IMY, or any successor thereto, of the Non-U.S. Lender, accompanied by IRS Form W-9, Form W-8ECI, Form W-8BEN or W-8BEN-E, U.S. Tax Compliance Certificate substantially in the form of Exhibit 4.7(d)-2 or Exhibit 4.7(d)-3, Form W-8IMY, or any other required information, or any successor forms, from each beneficial owner that would be required under this Section 4.7(d) if such beneficial owner were a Lender, as applicable (provided that, if the Non-U.S. Lender is a partnership for U.S. federal income tax purposes (and not a participating Lender), and one or more beneficial owners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate substantially in the form of Exhibit 4.7(d)-4 may be provided by such Non-U.S. Lender on behalf of such beneficial owners, provided such certificates are duly executed and properly completed originals), or any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit U.S. Borrower and Administrative Agent to determine the withholding or deduction required to be made; or
(V) any other form prescribed by applicable requirements of U.S. federal income tax law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit U.S. Borrower and Administrative Agent to determine the withholding or deduction required to be made.
(C) If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Sections 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to U.S. Borrower and Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by U.S. Borrower or Administrative Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by U.S. Borrower or Administrative Agent as may be necessary for U.S. Borrower or Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender or Issuing Lender has complied with such Lender’s obligations under FATCA or to determine or, if necessary, to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (C), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. Notwithstanding any other provision of this Section 4.7(d), a Lender shall not be required to deliver any form that such Lender is not legally eligible to deliver.
(iii) The Administrative Agent (acting in the name of and during on behalf of the continuance of an Event of Default applicable Lenders) shall, upon written request by O-I Mexico, deliver to O-I Mexico: (A) a tax invoice evidencing any payment made by O-I Mexico under this Agreement or any other Loan Document pursuant to the Mexican Federal Fiscal Code and rule 2.7.1.16 of the MTR (or any successor provision thereof) and any other applicable Mexican tax provision (which invoice shall be in substantially the form set forth in Exhibit 4.7(d)(iii) or such other form as may be reasonably agreed by the Administrative Agent and O-I Mexico, which in any case shall include the relevant information related to interest owing or paid to each of the applicable Lenders and the tax information of each of the applicable Lenders); and (B) in the case of any interest that has accrued with respect to any Multicurrency Revolving Loan made to O-I Mexico but which has not and will not become payable prior to December 31st of any given calendar year, a tax invoice for such unpaid but accrued interest (which invoice shall be substantially in the form of Exhibit 4.7(d)(iii) or such other form as may be reasonably agreed by the Administrative Agent and O-I Mexico, which in any case shall include the relevant information related to interest owing or paid to each of the applicable Lenders and the tax information of each of the applicable Lenders). Any tax invoice issued pursuant to clause (B) of the immediately preceding sentence shall not be considered in any case as a payment receipt and any such tax invoice shall not (subject to any requirements of applicable law) generate any withholding obligation on the part of O-I Mexico at its issuance date. If and to the extent that a payment of interest occurs with respect to interest that was the subject of a tax invoice issued pursuant to clause (B) of the second preceding sentence, O-I Mexico shall be entitled to request a tax invoice for such payment pursuant to clause (A) of the second preceding sentence and such second tax invoice shall constitute evidence for such payment and (subject to any requirements of applicable law) shall give rise to a withholding obligation on the part of O-I Mexico for the amount of such interest. Any failure or delay on the part of the Administrative Agent to deliver any tax invoice pursuant to this clause (iii) (or any inaccuracy or deficiency in any such tax invoice) shall not affect the obligations of O-I Mexico under this Agreement and the other Loan Documents (including, without limitation, its obligations under Sections 4.7(a) or 4.7(c)). The Lenders shall provide the Administrative Agent with any tax information reasonably requested by it to enable it to complete any tax invoice requested pursuant to this clause (iii). O-I Mexico shall provide the Administrative Agent with any tax information of O-I Mexico reasonably requested by it and at disposal of O-I Mexico to enable it to complete any tax invoice requested pursuant to this clause (iii).
(e) Each Agent, Lender, Documentation Agent and Arranger will cooperate with O-I Australia, and will do or provide such other things as may be reasonably requested from time to time by O-I Australia, to demonstrate that the requirements of section 128F of the Income Tax Assessment Act of 1936 (Commonwealth of Australia) were satisfied in relation to the issues of Tranche B Term Loans and Revolving Loans made to O-I Australia and Notes issued by O-I Australia under this Agreement, so that payment of interest under each of the above-mentioned Loans will be exempt from withholding tax under the Income Tax Assessment Act of 1936 (Commonwealth of Australia). Non-compliance by any Arranger or Documentation Agent with this paragraph shall not relieve O-I Australia of its obligations under Sections 4.7(a) or 4.7(c).
(f) Each Lender under the Tranche C Term Loan Facility represents and warrants to O-I NZ that as of the Closing Date and on any date that any interest (or any payment deemed by applicable law to be interest) is payable in respect of the Tranche C Term Loans that if it receives any such payment under this Agreement subject to the New Zealand resident withholding tax rules, it holds an “RWT exemption certificate” (as defined in the New Zealand Income Tax Act 2007 (New Zealand)) or otherwise has exempt status in respect of New Zealand resident withholding tax. Non-compliance by any Lender with this clause (f) shall not relieve O-I NZ of its obligations under Section 10.1 4.7(a).
(g) O-I NZ or 10any other Loan Party who makes a payment under this Agreement subject to the New Zealand non-resident withholding tax rules may at any time, and shall if requested by any Lender under the Tranche C Term Loan Facility:
(i) if permitted by applicable law, register as an “Approved Issuer” (as defined in the New Zealand Income Tax Act 2007 (New Zealand)) and register this document with the New Zealand Inland Revenue Department under section 86H of the Stamp and Cheque Duties A▇▇ ▇▇▇▇ (New Zealand); and
(ii) in respect of each payment of interest (or any payment deemed by applicable law to be interest) in respect of the Tranche C Term Loans to a Lender that receives such payments subject to the New Zealand non-resident withholding tax rules, make the relevant payment of “Approved Issuer Levy” (as defined in the Stamp and Cheque Duties Act 1971 (New Zealand)) in accordance with section 86K of the Stamp and Cheque Duties A▇▇ ▇▇▇▇ (New Zealand) in order to reduce (to the extent permitted by law) the applicable level of non-resident withholding tax to zero per cent.
(h) Each Lender shall severally indemnify Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified Administrative Agent for such Indemnified Taxes and without limiting the obligation of th
Appears in 1 contract
Net Payments. (i) All payments of principal of and premium, if any, interest and any other amounts on, or in respect of, the Securities of any series shall be made by the Borrower under this Agreement shall be made free and clear ofGuarantor without withholding or deduction at source for, and without deduction or withholding for or on account of, any current present or future income or other taxes, levies, impostsfees, duties, chargesassessments or governmental charges of whatever nature imposed or levied by or on behalf of The Netherlands (the "taxing jurisdiction") or any political subdivision or taxing authority thereof or therein, unless such taxes, fees, deductions duties, assessments or withholdings, now or hereafter imposed, levied, collected, governmental charges are required to be withheld or assessed deducted by any Governmental Authority, excluding (Ai) any net income taxes, franchise taxes the laws (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (Bregulations or ruling promulgated thereunder) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the taxing jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including, without limitation, a holding by a court of competent jurisdiction or by a taxing authority in a taxing jurisdiction or any political subdivision thereof). If a withholding or deduction at source is required, the Guarantor shall, subject to certain limitations and exceptions set forth below, pay to the Holder of any such Security such additional amounts as may be necessary so that every net payment of principal, premium, if any, interest or any other amount made to such Holder, after such withholding or deduction, shall not be less than the amount provided for in such Security and this Indenture to be then due and payable; provided, however, that the Guarantor shall not be required to make payment of such additional amounts for or on account of:
(a) any tax, fee, duty, assessment or governmental charge of whatever nature which would not have been imposed but for the fact that such Holder: (A) was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the relevant taxing jurisdiction or any political subdivision thereof or otherwise had some connection with the relevant taxing jurisdiction other than any such connection arising solely from by reason of the Administrative Agent mere ownership of, or such Lender having executed, delivered or performed its obligations or received a receipt of payment under, such Security; (B) presented such Security for payment in the relevant taxing jurisdiction or enforcedany political subdivision thereof, this Agreementunless such Security could not have been presented for payment elsewhere; or (C) presented such Security more than thirty (30) days after the date on which the payment in respect of such Security first became due and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending officeprovided for, whichever is later, except to the extent that the Holder would have been entitled to such Lender additional amounts if it had presented such Security for payment on any day within such period of thirty (30) days;
(b) any estate, inheritance, gift, sale, transfer, personal property or its assignorsimilar tax, assessment or other governmental charge;
(c) any tax assessment or other governmental charge imposed on a payment that is required to be made pursuant to any European Union Directive on the taxation of savings implementing the conclusions of the ECOFIN council meetings of November 26 - 27, 2000 and June 3, 2003 or any law implementing or complying with, or introduced in order to confirm such directive;
(d) 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 such Security to comply with any reasonable request by the Guarantor addressed to the Holder within 90 days of such request (A) to provide information concerning the nationality, residence or identity 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 statute, treaty, regulation or administrative practice of the relevant taxing jurisdiction or any political subdivision thereof as a precondition to exemption from all or part of such tax, assessment or other governmental charge; or
(e) any combination of items (a), (b) (c) and (d); nor shall additional amounts be paid with respect to any payment of the principal of, or premium, if any, interest or any other amounts on, any such Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such Security to the extent such payment would be required by the laws of the relevant taxing jurisdiction (or any political subdivision or relevant taxing authority thereof or therein) was entitled, at to be included in the time of designation income for tax purposes of a new lending office beneficiary or assignment, to receive additional amounts from the Borrower partner or settlor with respect to such withholding tax fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had it been the Holder of the Security. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium, interest or any other amounts on, or in respect of, any Security of any series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of additional amounts provided by the terms of such series established hereby or pursuant hereto to the extent that, in such context, additional amounts are, were or would be payable in respect thereof pursuant to such terms, and express mention of the payment of additional amounts (if applicable) in any provision hereof shall not be construed as excluding the payment of additional amounts in those provisions hereof where such express mention is not made. Except as otherwise provided in or pursuant to this Section 5.3(aIndenture or the Securities of the applicable series, at least 10 days prior to the first Interest Payment Date with respect to a series of Securities (or if the Securities of such series shall not bear interest prior to Maturity, the first day on which a payment of principal is made), (“Taxes”) except and at least 10 days prior to each date of payment of principal or interest if there has been any change with respect to the extent that such deduction or withholding is required by any applicable lawmatters set forth in the below-mentioned Guarantor's Officer's Certificate, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject Guarantor shall furnish to Section 5.3(b)the Trustee and the principal paying agent, if any other than the Trustee, a Guarantor's Officer's Certificate instructing the Trustee and such Taxes are required to be withheld from any amounts payable to the Administrative Agent paying agent whether such payment of principal of and premium, if any, interest or any Lender hereunder, other amounts on the Borrower shall:
(A) promptly notify the Administrative Agent Securities of such requirement;
(B) promptly pay series shall be made to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount Holders of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result Securities of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.series
Appears in 1 contract
Net Payments. (ia) All payments made by the Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (Ai) any net income taxes, taxes and franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, Lender and (Bii) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such SUCH tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if . If any such Taxes non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings ("NON-EXCLUDED TAXES") are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower amounts so payable to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward shall be increased to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable extent necessary to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay yield to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, (after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all Non-Excluded Taxes) interest or any SUCH other amounts payable hereunder.
(b) Notwithstanding Section 5.3(a)hereunder at the rates or in the amounts specified in this Agreement; PROVIDED, HOWEVER, that the Borrower shall not be required to indemnify or pay increase any additional such amounts in respect of withholding tax applicable payable to any amount payable Lender that is not organized under this Agreement pursuant the laws of the United States of America or a state thereof if SUCH Lender fails to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or comply with the consent requirements of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence paragraph (b) of and during the continuance of an Event of Default pursuant to this Section 10.1 or 105.
Appears in 1 contract
Net Payments. (ia) All Any and all payments made by by, on behalf of, or on an account of any obligation of, the Borrower or any Guarantor under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding for or on account of, any current Taxes; provided that if any applicable withholding agent shall be required by Applicable Law to deduct or future income or other taxeswithhold any Taxes from such payments, leviesthen (i) if such Tax is an Indemnified Tax, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts sum payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower or any Guarantor shall be increased as necessary so that after making all such required deductions and withholdings (including such deductions or withholdings applicable to additional sums payable under this Section 12.7) or designates a new lending office5.4), except to the extent that such applicable Lender (or in the case of payments made to an Agent for its assignorown account, if anysuch Agent) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except receives an amount equal to the extent that sum it would have received had no such deduction deductions or withholding is required by any applicable lawwithholdings been made, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any the applicable withholding agent shall make such Taxes are required to be deductions or withholdings and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due within the full amount required to be deducted or withheld (including the full amount of time allowed and in accordance with Applicable Law. Whenever any Taxes required to be deducted or withheld from any additional amount paid are payable by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) any Guarantor, as promptly as possible thereafter, forward the Borrower or Guarantor shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or a certified copy), or other documentation reasonably evidence acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(Dacting reasonably) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent Borrower or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been requiredGuarantor evidencing payment thereof.
(iiib) If the The Borrower fails to shall timely pay to the relevant Governmental Authority when due any Taxes that it was required to deduct Authority, or withhold under this Section 5.3(a) in respect of any payment to or for at the benefit option of the Administrative Agent reimburse the Administrative Agent for the payment of, any Other Taxes (whether or not such Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority).
(c) The Borrower shall indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender within fifteen Business Days after written demand therefor, for the full amount of any Indemnified Taxes imposed on the Administrative Agent, the Collateral Agent or such Lender as the case may be, on or with respect to any payment by or on account of any obligation of the Borrower or any Guarantor hereunder or under any other Credit Document (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 5.4) and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth reasonable detail as to the amount of such payment or liability delivered to the Borrower by a Lender, the Administrative Agent or the Collateral Agent (as applicable) on its own behalf or on behalf of a Lender shall be conclusive absent manifest error.
(d) Any Lender that is entitled to an exemption from or reduction of withholding Tax, with respect to payments hereunder or under any other Credit Document shall, to the extent it is legally able to do so, deliver to the Borrower (with a copy to the Administrative Agent), at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. A Lender’s obligation under the prior sentence shall apply only if the Borrower or the Administrative Agent has made a request for such documentation. In addition, any Lender, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in this Section 5.4(d), the completion, execution and submission of such documentation (other than such documentation set forth in Sections 5.4(e), 5.4(h) and 5.4(i) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Sections 5.4(d), 5.4(e), 5.4(h) and 5.4(i).
(e) Each Non-U.S. Lender with respect to any Loan made to the Borrower shall, to the extent it is legally eligible to do so:
(i) deliver to the Borrower and the Administrative Agent, prior to the date on which the first payment to the Non-U.S. Lender is due hereunder, two copies of (x) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding Tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN or W-8BEN-E (together with a certificate substantially in the form of Exhibit Q certifying that (1) such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, (2) such Non-U.S. Lender is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower, (3) any interest payment received by such Non-U.S. Lender under this Agreement or fails to furnish the Administrative Agent any other Credit Document is not effectively connected with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Nonnon-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated ’s conduct of a trade or transferred to business in the United States and (4) such Non-U.S. Lender at is not a controlled foreign corporation related to the request or with Borrower (within the consent meaning of Section 881(c)(3)(C) of the Borrower Code)), (y)(1) Internal Revenue Service Form W-8BEN or were assignedForm W-8BEN-E, participated or transferred to in each case properly completed and duly executed by such Non-U.S. Lender following claiming complete exemption from, or reduced rate of, U.S. federal withholding Tax on payments by the Borrower or any Guarantor under an applicable income tax treaty to which the United States is a party or (2) properly completed and duly executed Internal Revenue Service Form W-8ECI, or (z) if a Non-U.S. Lender does not act or ceases to act for its own account with respect to any portion of any sums paid or payable to such Lender under any of the Credit Documents (for example, in the case of a typical participation or where Non-U.S. Lender is a pass through entity) Internal Revenue Service Form W-8IMY and all necessary attachments (including the forms described in clauses (x) and (y) above, as required), provided that if the Non-U.S. Lender is a partnership (and not a participating Lender), and one or more of the partners is claiming portfolio interest treatment, the certificate substantially in the form of Exhibit Q may be provided by such Non-U.S. Lender on behalf of such partner(s)), in each case properly completed and duly executed; and
(ii) deliver to the Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) in each case properly completed and duly executed on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower, and during from time to time thereafter if reasonably requested by the continuance Borrower or the Administrative Agent, or promptly notify the Borrower and the Administrative Agent in writing of its legal ineligibility to do so. If in any such case any Change in Law has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Non-U.S. Lender from duly completing and delivering any such form with respect to it, such Non-U.S. Lender shall promptly so advise the Borrower and the Administrative Agent.
(f) If any Lender, the Administrative Agent or the Collateral Agent, as applicable, determines, in its sole discretion exercised in good faith, that it had received and retained a refund of an Event Indemnified Tax (including an Other Tax) for which a payment of Default additional amounts or indemnification payments has been made by the Borrower pursuant to Section 10.1 5.4, which refund in the good faith judgment of such Lender, the Administrative Agent or 10the Collateral Agent, as the case may be, is attributable to such payment made by the Borrower, then the Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall reimburse the Borrower for such amount (net of all out-of-pocket expenses of such Lender, the Administrative Agent or the Collateral Agent, as the case may be, and without interest other than any interest received thereon from the relevant Governmental Authority with respect to such refund) as the Lender, the Administrative Agent or the Collateral Agent, as the case may be, determines in its sole discretion exercised in good faith to be the proportion of the refund as will leave such Person, after such reimbursement, in no better or worse position (taking into account expenses or any Taxes imposed on the refund) than it would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid; provided that the Borrower, upon the request of the Lender, the Administrative Agent or the Collateral Agent, agrees to repay the amount paid over to the Borrower pursuant to this Section 5.4(f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Lender, the Administrative Agent or the Collateral Agent, as the case may be, in the event the Lender, the Administrative Agent or the Collateral Agent is required to repay such refund to such Governmental Authority. Upon reasonable request by the Borrower, a Lender, the Administrative Agent or the Collateral Agent shall claim any refund in respect of any Indemnified Tax or Other Tax for which a payment of additional amounts or indemnification payments has been made by the Borrower pursuant to this Section 5.4 that such Lender or Agent determines is available to it, unless it concludes in its sole discretion that it would be adversely affected by making such a claim. None of any Lender, the Administrative Agent or the Collateral Agent shall be obliged to disclose any information regarding its tax affairs or computations to any Credit Party in connection with this clause (f) or any other provision of this Section 5.4.
(g) If the Borrower determines that a reasonable basis exists for contesting a Tax, each Lender or Agent, as the case may be, shall use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request in challenging such Tax. Subject to the provisions of Section 2.12, each Lender and Agent agrees to use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request to minimize any amount payable by the Borrower or any Guarantor pursuant to this Section 5.
Appears in 1 contract
Sources: Credit Agreement (Talen Energy Corp)
Net Payments. (ia) All Any and all payments made by or on behalf of the Borrower or any Guarantor under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding for or on account of, any current Indemnified Taxes; provided that if the Borrower or future income any Guarantor shall be required by applicable Requirements of Law to deduct or other taxeswithhold any Indemnified Taxes from such payments, levies, imposts, duties, charges, fees, then (i) the sum payable shall be increased as necessary so that after making all required deductions and withholdings (including deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (Awithholdings applicable to additional sums payable under this Section 5.4) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent Agent, the Collateral Agent, the applicable Letter of Credit Issuer, or any the applicable Lender, (B) any such taxes attributable as the case may be, receives an amount equal to the failure of the Administrative Agent sum it would have received had no such deductions or any Lender to comply with Section 5.3(c)withholdings been made, (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
or such Guarantor shall make such deductions or withholdings and (Aiii) promptly notify the Administrative Agent of Borrower or such requirement;
(B) promptly Guarantor shall timely pay the full amount deducted or withheld to the relevant Governmental Authority when due within the full amount required to be deducted or withheld (including the full amount time allowed and in accordance with applicable Requirements of Law. Whenever any Indemnified Taxes required to be deducted or withheld from any additional amount paid are payable by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) Guarantor, as promptly as possible thereafter, forward the Borrower or Guarantor shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or a certified copy), or other documentation reasonably evidence acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually acting reasonably) received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10Guarantor showing payment thereof.
Appears in 1 contract
Net Payments. (i) All payments made by the Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), ) and (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) . The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.
Appears in 1 contract
Net Payments. (ia) All payments made by the Borrower or on behalf of any Credit Party under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding for or on account of, of any current or future income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending officeTaxes, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is as required by Applicable Law. If any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent by or on behalf of any Credit Party under this Agreement or any Lender hereunderother Credit Document (as determined in the good faith discretion of the applicable withholding agent), then the Borrower shall:
(A) promptly notify applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the Administrative Agent of such requirement;
(B) promptly pay full amount deducted or withheld to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by in accordance with Applicable Law, and if such Tax is a Non-Excluded Tax, then the Borrower shall increase the amounts payable to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward applicable Recipient to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing extent necessary so that after such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any has been made (including such Taxes, will deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the full amount the Administrative Agent or such Lender sum it would have received had no such deduction or withholding been required.
(iii) If made. Whenever any Taxes are paid by a Credit Party pursuant to this Section 5.04(a), as soon as practicable thereafter, the Borrower fails shall send to the Administrative Agent the original or a certified copy of a receipt issued by the relevant Governmental Authority, a copy of the return reporting such payment, or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Borrower shall indemnify the Agents and the Lenders for any Non-Excluded Taxes (including Non-Excluded Taxes imposed or asserted on or attributable to amounts payable under this Section 5.04(a)) that are paid by any Agent or Lender or that are required to be withheld or deducted from a payment to any Agent or Lender and any reasonable expenses arising therefrom or with respect thereto, whether or not such Non-Excluded Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority, within ten (10) days after demand therefor. A certificate as to the amount of such payment or liability delivered to the Borrower by an Agent or Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority when due any Taxes that it was required to deduct in accordance with Applicable Law, or withhold under this Section 5.3(a) in respect of any payment to or for at the benefit option of the Administrative Agent or Agent, shall timely reimburse it for the payment of any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to Other Taxes. The agreements in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a5.04(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(bi) Notwithstanding Section 5.3(aEach Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by Applicable Law or reasonably requested by the Borrower or Administrative Agent as will permit such payments to be made without withholding or at a reduced rate; provided, that such Lender is legally entitled to complete, execute and deliver such documentation. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Person that shall become a Participant pursuant to Section 13.06 or a Lender pursuant to Section 13.06 shall, upon the effectiveness of the related transfer, be required to indemnify or pay provide all the forms and statements required pursuant to this Section 5.04(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding any additional amounts other provision of this paragraph, no Lender shall be required to deliver any form (other than such documentation required by Sections 5.04(b)(ii)(A)-(C) and (iii)) that in respect of withholding tax applicable such Lender’s reasonable judgment would subject such Lender to any amount payable material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing,
(A) any Lender that is a “United States Person” as defined in Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent on or about the date on which such L▇▇▇▇▇ becomes a Lender under this Agreement pursuant (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Lender that is not a “United States Person” as defined in Section 5.3(a7701(a)(30) above to any of the Code (a “Non-U.S. Lender”) shall, except if any to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such Revolving Credit Loans were assigned, participated number of copies as shall reasonably be requested) on or transferred to about the date on which such Non-U.S. Lender at becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request or with the consent of the Borrower or were assignedthe Administrative Agent), participated whichever of the following is applicable:
(1) in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed copies of IRS Form W-8BEN or transferred IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2) executed copies of IRS Form W-8ECI;
(3) in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit L-1 to the effect that such Non-U.S. Lender following is not a “bank” within the occurrence meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” within the meaning of Section 957 of the Code related to the Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and during (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or
(1) to the continuance extent a Non-U.S. Lender is not the beneficial owner, executed copies of an Event IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Default Exhibit L-2 or Exhibit L-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Non-U.S. Lender is a partnership and one or more direct or indirect partners of such Non-U.S. Lender are claiming the portfolio interest exemption, such Non-U.S. Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such direct and indirect partner;
(C) Any Non-U.S. Lender shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made;
(iii) Without limiting the generality of the foregoing, if a payment made to a Recipient under any Credit Document would be subject to United States federal withholding tax imposed by FATCA if such Recipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Recipient shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i), of the Code and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Recipient has complied with such Recipient’s obligations under FATCA or to determine the amount to deduct and withhold from such payment under FATCA, if any). Solely for the purposes of this clause (iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iv) Each Recipient agrees that if any form or certification it previously delivered pursuant to this Section 10.1 5.04(b) expires or becomes obsolete or inaccurate in any material respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(c) If any Lender or any Agent determines, in its sole discretion exercised in good faith, that it has received a refund of a Tax for which it has been indemnified by the Borrower pursuant to this Section 5.04 (including by the payment of additional amounts by the Borrower pursuant to this Section 5.04), then such Lender or such Agent, as the case may be, shall reimburse the Borrower for such amount (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 5.04 with respect to the Tax giving rise to such refund), net of all out-of-pocket expenses of such Agent or such Lender (including any Taxes imposed on the receipt of such refund) and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that the Borrower, upon the request of such Agent or such L▇▇▇▇▇, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Agent or such Lender in the event such Agent or such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (c), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (c) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any Agent or any Lender to make available its tax returns (or any other information relating to its Taxes which it deems confidential) to the Borrower or any other Person.
(d) Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Non-Excluded Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Non-Excluded Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 13.06 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (d).
(e) Each party’s obligations under this Section 5.04 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Credit Document.
Appears in 1 contract
Sources: Credit Agreement (Grindr Inc.)
Net Payments. (i) All payments made by the Borrower Company to the Bank under or in connection with this Agreement and the Note shall be made without any setoff or counterclaim, and free and clear of, of and without deduction or withholding for or on account of, of any current present or future income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, Taxes now or hereafter imposed, levied, collected, withheld or assessed imposed by any Governmental Authoritygovernmental or other authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required compelled by any applicable law. As used herein, the term "Taxes" shall include all income, excise and other taxes of whatever nature (other than taxes generally assessed on the overall net income of the Bank, as modified the case may be, by the administrative practice government or other authority of the country in which the Bank is incorporated or in which the Bank's Funding Office or the office through which the Bank is acting is located provided that taxes so assessed on any relevant Governmental Authority then in effect.
(iiadditional amounts payable hereunder shall constitute "Taxes") Subject as well as all levies, imposts, duties, charges or fees of whatever nature. If the Company is compelled by law to Section 5.3(b), if make any such Taxes are required to be withheld from any amounts payable to the Administrative Agent deductions or any Lender hereunder, the Borrower shallwithholdings it will:
(Ai) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due authorities the full amount required to be deducted so withheld or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a))deducted;
(Cii) (except to the extent that such deduction or withholding results from the breach, by the recipient of a payment, of its agreement, if any, contained in Section 8.2 or would not be required if such recipient's representation or warranty contained in Section 8.2, if any, were true) pay such additional amounts (including, without limitation, any penalties, interest or expenses) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, may be necessary in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure order that the net amount actually received by the Administrative Agent Bank after such deductions or such Lender, after withholdings (including any required deduction or withholding for any on such Taxes, will additional amounts) shall equal the full amount the Administrative Agent or such Lender payee would have received had no such deduction deductions or withholding withholdings been required.made; and
(iii) If the Borrower fails to pay promptly forward to the relevant Governmental Authority when due Bank an official receipt or other documentation satisfactory to the Bank evidencing such payment to such authorities. Moreover, if any Taxes are directly asserted against the Bank, such payee may pay such Taxes and the Company (except to the extent that it was required to deduct such Taxes result from the breach, by such payee, of its agreement contained in Section 8.2, if any, or withhold would not be asserted if such payee's representation or warranty contained in Section 8.2, if any, were true) promptly shall reimburse the payee for such Taxes and shall pay such additional amount (including, without limitation, any penalties, interest or expenses in connection therewith) as may be necessary in order that the net amount received by such payee after the payment of such Taxes (including any Taxes on such additional amount) shall equal the amount such payee would have received had no such Taxes been asserted. The Company's agreement under this Section 5.3(a) in respect of any payment to or for the benefit 8.1 shall survive repayment of the Administrative Agent or Liabilities, cancellation of the Note and/or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all amounts payable hereunderAgreement.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.
Appears in 1 contract
Net Payments. (i) All payments made by the any Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the a Borrower under Section 12.7) or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the such Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (all such non-excluded taxes, “Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the applicable Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the such Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the any Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the such Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Each Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the no Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the such Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.
Appears in 1 contract
Net Payments. (i) All payments of Principal of and interest and any other amounts on, or in respect of, the Debt Securities shall be made by the Borrower under this Agreement shall be made free and clear ofGuarantor without withholding or deduction at source for, and without deduction or withholding for or on account of, any current present or future income or other taxes, levies, impostsfees, duties, chargesassessments or governmental charges of whatever nature imposed or levied by or on behalf of Bermuda (a “taxing jurisdiction”) or any political subdivision or taxing authority thereof or therein, unless such taxes, fees, deductions duties, assessments or withholdings, now or hereafter imposed, levied, collected, governmental charges are required to be withheld or assessed deducted by any Governmental Authority, excluding (Ai) any net income taxes, franchise taxes the laws (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (Bregulations or ruling promulgated thereunder) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the taxing jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including, without limitation, a holding by a court of competent jurisdiction or by a taxing authority in a taxing jurisdiction or any political subdivision thereof). If a withholding or deduction at source is required, the Guarantor shall, subject to certain limitations and exceptions set forth below, pay to the Holder of any such Debt Security such Additional Amounts as may be necessary so that every net payment of Principal, interest or any other amount made to such Holder, after such withholding or deduction, shall not be less than the amount provided for in such Debt Security and the Indenture to be then due and payable; provided, however, that the Guarantor shall not be required to make payment of such Additional Amounts for or on account of:
(1) any tax, fee, duty, assessment or governmental charge of whatever nature which would not have been imposed but for the fact that such Holder: (A) was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the relevant taxing jurisdiction or any political subdivision thereof or otherwise had some connection with the relevant taxing jurisdiction other than any such connection arising solely from by reason of the Administrative Agent mere ownership of, or such Lender having executed, delivered or performed its obligations or received a receipt of payment under, such Debt Security; (B) presented such Debt Security for payment in the relevant taxing jurisdiction or enforcedany political subdivision thereof, this Agreementunless such Debt Security could not have been presented for payment elsewhere; or (C) presented such Debt Security more than thirty (30) days after the date on which the payment in respect of such Debt Security first became due and (D) U.S. federal withholding taxes imposed on amounts payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 12.7) or designates a new lending officeprovided for, whichever is later, except to the extent that the Holder would have been entitled to such Lender Additional Amounts if it had presented such Debt Security for payment on any day within such period of thirty (30) days;
(2) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other 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 such Debt Security to comply with any reasonable request by the Guarantor addressed to the Holder within 90 days of such request (A) to provide information concerning the nationality, residence or identity 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 statute, treaty, regulation or administrative practice of the relevant taxing jurisdiction or any political subdivision thereof as a precondition to exemption from all or part of such tax, assessment or other governmental charge; or
(4) any combination of items (1), (2) and (3); nor shall Additional Amounts be paid with respect to any payment of the Principal of, interest or any other amounts on, any such Debt Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such Debt Security to the extent such payment would be required by the laws of the relevant taxing jurisdiction (or its assignor, if anyany political subdivision or relevant taxing authority thereof or therein) was entitled, at to be included in the time of designation income for tax purposes of a new lending office beneficiary or assignment, to receive additional amounts from the Borrower partner or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such Additional Amounts had it been the Holder of the Debt Security. Whenever in the Indenture there is mentioned, in any context, the payment of the Principal of, interest or any other amounts on, or in respect of, any Debt Security or the net proceeds received on the sale or exchange of any Debt Security, such mention shall be deemed to include mention of the payment of Additional Amounts provided hereby to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the terms hereof, and express mention of the payment of Additional Amounts (if applicable) in any provision of the Indenture shall not be construed as excluding the payment of Additional Amounts in those provisions where such express mention is not made. Except as otherwise provided in or pursuant to the Indenture or the Debt Securities, at least 10 days prior to the first interest payment date with respect to a series of Debt Securities after the date of this Supplemental Indenture, and at least 10 days prior to each date of payment of Principal or interest if there has been any change with respect to the matters set forth in the below-mentioned Guarantor’s Officer’s Certificate, the Guarantor shall furnish to the Trustee and the principal paying agent(s), if other than the Trustee, a Guarantor’s Officer’s Certificate instructing the Trustee and such paying agent(s) whether such payment of Principal of and interest or any other amounts on the Debt Securities of such series shall be made to Holders of Debt Securities of such series without withholding tax for or on account of any tax, fee, duty, assessment or other governmental charge described in this Section 2.02. If any such withholding shall be required, then such Guarantor’s Officer’s Certificate shall specify by taxing jurisdiction the amount, if any, required to be withheld on such payments to such Holders of Debt Securities, and the Guarantor agrees to pay to the Trustee or such Paying Agent the Additional Amounts required by this Section 2.02. The Issuer and the Guarantor covenant to indemnify the Trustee and any paying agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Guarantor’s Officer’s Certificate furnished pursuant to this Section 5.3(a), (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect2.02.
(ii) Subject to Section 5.3(b), if any such Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) as promptly as possible thereafter, forward to the Administrative Agent an official receipt (or a certified copy), or other documentation reasonably acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(D) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required.
(iii) If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.
Appears in 1 contract
Net Payments. (ia) All Any and all payments made by by, on behalf of, or on an account of any obligation of, the Borrower or any Guarantor under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding for or on account of, any current Taxes; provided that if any applicable withholding agent shall be required by Applicable Law to deduct or future income or other taxeswithhold any Taxes from such payments, leviesthen (i) if such Tax is an Indemnified Tax, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (A) any net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender, (B) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c), (C) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) and (D) U.S. federal withholding taxes imposed on amounts sum payable to or for the account of a Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower or any Guarantor shall be increased as necessary so that after making all such required deductions and withholdings (including such deductions or withholdings applicable to additional sums payable under this Section 12.7) or designates a new lending office5.4), except to the extent that such applicable Lender (or in the case of payments made to an Agent for its assignorown account, if anysuch Agent) was entitled, at the time of designation of a new lending office or assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to this Section 5.3(a), (“Taxes”) except receives an amount equal to the extent that sum it would have received had no such deduction deductions or withholding is required by any applicable lawwithholdings been made, as modified by the administrative practice of any relevant Governmental Authority then in effect.
(ii) Subject to Section 5.3(b), if any the applicable withholding agent shall make such Taxes are required to be deductions or withholdings and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the Borrower shall:
(A) promptly notify the Administrative Agent of such requirement;
(B) promptly pay to the relevant Governmental Authority when due within the full amount required to be deducted or withheld (including the full amount of time allowed and in accordance with Applicable Law. Whenever any Taxes required to be deducted or withheld from any additional amount paid are payable by the Borrower to the Administrative Agent or such Lender under this Section 5.3(a));
(C) any Guarantor, as promptly as possible thereafter, forward the Borrower or Guarantor shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or a certified copy), or other documentation reasonably evidence acceptable to the Administrative Agent, evidencing such payment to such Governmental Authority; and
(Dacting reasonably) pay to the Administrative Agent or such Lender, in addition to the payment to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent Borrower or such Lender, after deduction or withholding for any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been requiredGuarantor evidencing payment thereof.
(iiib) If the The Borrower fails to shall timely pay to the relevant Governmental Authority when due any Taxes that it was required to deduct Authority, or withhold under this Section 5.3(a) in respect of any payment to or for at the benefit option of the Administrative Agent reimburse the Administrative Agent for the payment of, any Other Taxes (whether or not such Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority).
(c) The Borrower shall indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender within fifteen Business Days after written demand therefor, for the full amount of any Indemnified Taxes imposed on the Administrative Agent, the Collateral Agent or such Lender as the case may be, on or with respect to any payment by or on account of any obligation of the Borrower or any Guarantor hereunder or under any other Credit Document (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 5.4) and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth reasonable detail as to the amount of such payment or liability delivered to the Borrower by a Lender, the Administrative Agent or the Collateral Agent (as applicable) on its own behalf or on behalf of a Lender shall be conclusive absent manifest error.
(d) Any Lender that is entitled to an exemption from or reduction of withholding Tax, with respect to payments hereunder or under any other Credit Document shall, to the extent it is legally able to do so, deliver to the Borrower (with a copy to the Administrative Agent), at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. A Lender’s obligation under the prior sentence shall apply only if the Borrower or the Administrative Agent has made a request for such documentation. In addition, any Lender, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent 139 to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in this Section 5.4(d), the completion, execution and submission of such documentation (other than such documentation set forth in Sections 5.4(e), 5.4(h) and 5.4(i) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Sections 5.4(d), 5.4(e), 5.4(h) and 5.4(i).
(e) Each Non-U.S. Lender with respect to any Loan made to the Borrower shall, to the extent it is legally eligible to do so:
(i) deliver to the Borrower and the Administrative Agent, prior to the date on which the first payment to the Non-U.S. Lender is due hereunder, two copies of (x) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding Tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN or W-8BEN-E (together with a certificate substantially in the form of Exhibit Q certifying that (1) such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, (2) such Non-U.S. Lender is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower, (3) any interest payment received by such Non-U.S. Lender under this Agreement or fails to furnish the Administrative Agent any other Credit Document is not effectively connected with the documentation referred to in Section 5.3(a)(ii)(C) when required to do so, the Borrower shall forthwith on demand fully indemnify the Administrative Agent or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or such Lender as a result of such failure.
(iv) The Borrower’s obligations under this Section 5.3(a) shall survive the termination of this Agreement and the payment of all amounts payable hereunder.
(b) Notwithstanding Section 5.3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Nonnon-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated ’s conduct of a trade or transferred to business in the United States and (4) such Non-U.S. Lender at is not a controlled foreign corporation related to the request or with Borrower (within the consent meaning of Section 881(c)(3)(C) of the Borrower Code)), (y)
(1) Internal Revenue Service Form W-8BEN or were assignedForm W-8BEN-E, participated or transferred to in each case properly completed and duly executed by such Non-U.S. Lender following claiming complete exemption from, or reduced rate of, U.S. federal withholding Tax on payments by the Borrower or any Guarantor under an applicable income tax treaty to which the United States is a party or (2) properly completed and duly executed Internal Revenue Service Form W-8ECI, or (z) if a Non-U.S. Lender does not act or ceases to act for its own account with respect to any portion of any sums paid or payable to such Lender under any of the Credit Documents (for example, in the case of a typical participation or where Non-U.S. Lender is a pass through entity) Internal Revenue Service Form W-8IMY and all necessary attachments (including the forms described in clauses (x) and (y) above, as required), provided that if the Non-U.S. Lender is a partnership (and not a participating Lender), and one or more of the partners is claiming portfolio interest treatment, the certificate substantially in the form of Exhibit Q may be provided by such Non-U.S. Lender on behalf of such partner(s)), in each case properly completed and duly executed; and
(ii) deliver to the Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) in each case properly completed and duly executed on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower, and during from time to time thereafter if reasonably requested by the continuance Borrower or the Administrative Agent, or promptly notify the Borrower and the Administrative Agent in writing of its legal ineligibility to do so. If in any such case any Change in Law has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Non-U.S. Lender from duly completing and delivering any such form with respect to it, such Non-U.S. Lender shall promptly so advise the Borrower and the Administrative Agent. 140
(f) If any Lender, the Administrative Agent or the Collateral Agent, as applicable, determines, in its sole discretion exercised in good faith, that it had received and retained a refund of an Event Indemnified Tax (including an Other Tax) for which a payment of Default additional amounts or indemnification payments has been made by the Borrower pursuant to Section 10.1 5.4, which refund in the good faith judgment of such Lender, the Administrative Agent or 10the Collateral Agent, as the case may be, is attributable to such payment made by the Borrower, then the Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall reimburse the Borrower for such amount (net of all out-of-pocket expenses of such Lender, the Administrative Agent or the Collateral Agent, as the case may be, and without interest other than any interest received thereon from the relevant Governmental Authority with respect to such refund) as the Lender, the Administrative Agent or the Collateral Agent, as the case may be, determines in its sole discretion exercised in good faith to be the proportion of the refund as will leave such Person, after such reimbursement, in no better or worse position (taking into account expenses or any Taxes imposed on the refund) than it would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid; provided that the Borrower, upon the request of the Lender, the Administrative Agent or the Collateral Agent, agrees to repay the amount paid over to the Borrower pursuant to this Section 5.4(f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Lender, the Administrative Agent or the Collateral Agent, as the case may be, in the event the Lender, the Administrative Agent or the Collateral Agent is required to repay such refund to such Governmental Authority. Upon reasonable request by the Borrower, a Lender, the Administrative Agent or the Collateral Agent shall claim any refund in respect of any Indemnified Tax or Other Tax for which a payment of additional amounts or indemnification payments has been made by the Borrower pursuant to this Section 5.4 that such Lender or Agent determines is available to it, unless it concludes in its sole discretion that it would be adversely affected by making such a claim. None of any Lender, the Administrative Agent or the Collateral Agent shall be obliged to disclose any information regarding its tax affairs or computations to any Credit Party in connection with this clause (f) or any other provision of this Section 5.4.
(g) If the Borrower determines that a reasonable basis exists for contesting a Tax, each Lender or Agent, as the case may be, shall use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request in challenging such Tax. Subject to the provisions of Section 2.12, each Lender and Agent agrees to use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request to minimize any amount payable by the Borrower or any Guarantor pursuant to this Section 5.
Appears in 1 contract
Sources: Credit Agreement (Talen Energy Corp)