No withholdings. All sums payable by Borrower under the Note, this Loan Agreement and the other Loan Documents, shall be paid in full and without set-off or counterclaims and free of any deductions or withholdings for any and all present and future taxes, levies, imposts, deductions, duties, filing and other fees or charges (collectively, “Taxes”) other than Excluded Taxes. In the event that Borrower is prohibited by any law from making any such payment free of such deductions or withholdings with respect to Taxes, then Borrower shall pay such additional amount to Agent as may be necessary in order that the actual amount received by Lenders after such deduction or withholding (and after payment of any additional Taxes due as a consequence of the payment of such additional amount) shall equal the amount that would have been received if such deduction or withholding were not required; 62528184 35 provided, however, that Borrower shall not be obligated to pay such additional amount on account of a specific Lender if at the time such Lender became a “Lender” hereunder, Borrower is required to deduct or withhold any sums solely because such Lender had a legal basis to deliver, but failed to deliver, to Borrower (a) a duly executed copy of United States Internal Revenue Service Form X-0 XXX, X-0 ECI or W-81MY or any successor form or any required renewal thereof, as the case may be, certifying in each case that such Lender is entitled to receive payments hereunder or under the other Loan Documents without deduction or withholding of any United States federal income taxes or at a reduced rate of withholding for such taxes or (b) a duly executed United States Internal Revenue Service Form W-8 BEN or W-9 or any successor form or any required renewal thereof, establishing that a full exemption exists from United States backup withholding tax, and as result of such failure, Borrower was prohibited by the IRC from making any such payment free of such deductions or withholding. Notwithstanding anything contained in this Section 2.8, in no event will any Lender’s failure to deliver any such forms, or any renewal or extension thereof, affect, postpone or relieve Borrower from any obligation to pay Interest, principal, Additional Interest and other amounts due under the Loan Documents (other than amounts due under this Section 2.8 as a result of a Lender’s failure to deliver such forms). Such additional amount shall be due concurrently with the payment with respect to which such additional amount is owed in the amount of Taxes certified by Agent (or the applicable Lender). A certificate as to the amount of Taxes submitted by Agent to Borrower setting forth Agent’s (or the applicable Lender’s ) basis for the determination of Taxes shall be conclusive evidence of the amount thereof, absent manifest error. Failure on the part of Agent to demand payment from Borrower for any Taxes attributable to any particular period shall not constitute a waiver of Agent’s (or the applicable Lender’s) right to demand payment of such amount for any subsequent or prior period.
Appears in 1 contract
No withholdings. All sums payable by Borrower under the Note, this Loan Agreement and the other Loan Documents, shall be paid in full and without set-off or counterclaims and free of any deductions or withholdings for any and all present and future taxes, levies, imposts, deductions, duties, filing and other fees or charges charges, excluding Excluded Taxes (collectively, “Taxes”) other than Excluded Taxes). In the event that Borrower is prohibited by any law from making any such payment free of such deductions or withholdings with respect to Taxes, then Borrower shall pay such additional amount to Agent as may be necessary in order that the actual amount received by Lenders after such deduction or withholding (and after payment of any additional Taxes due as a consequence of the payment of such additional amount) shall equal the amount that would have been received if such deduction or withholding were not required; 62528184 35 provided, however, that Borrower shall not be obligated to pay such additional amount on account of a specific Lender if at the time such Lender became a “Lender” hereunder, Borrower is required to deduct or withhold any sums solely because such Lender had a legal basis to deliver, but failed to deliver, to Borrower (a) a duly executed copy of United States Internal Revenue Service Form X-0 XXX, X-0 ECI ECI, W-9 or W-81MY or any successor other form or statement prescribed by law from time to time and applicable to a Lender (in such number of copies as may be prescribed by 37 law from time to time), and any required renewal thereof, as the case may be, certifying in each case which, pursuant to the applicable provisions of an income tax treaty between the United States and the country of residence of the Lender, the IRC, or any applicable rule or regulation under the IRC, indicate that such Lender is entitled to receive payments hereunder or under the other Loan Documents without deduction or withholding of any United States federal income taxes taxes, or at a tax rate that is reduced to zero (or, upon written request of Borrower specifying the applicable form which such Lender may in accordance with law sign with no disadvantageous consequences to it or any of its affiliates as determined by such Lender, at a reduced rate of withholding for such taxes tax or (b) a duly executed United States Internal Revenue Service Form W-8 BEN or W-9 or any successor form or any required renewal thereof, establishing that a full exemption exists from United States backup withholding taxdeduction), and as result of such failure, Borrower was prohibited by such treaty, the IRC or such applicable rule or regulation from making any such payment free (or at a reduced rate as aforesaid) of such deductions or withholding. Notwithstanding anything contained in this Section 2.82.9, in no event will any Lender’s failure to deliver any such forms, or any renewal or extension thereof, affect, postpone or relieve Borrower from any obligation to pay Interest, principal, Additional Interest and other amounts due under the Loan Documents (other than amounts due under this Section 2.8 as a result of a Lender’s failure to deliver such forms)set forth above. Such additional amount shall be due concurrently with the payment with respect to which such additional amount is owed in the amount of Taxes certified by Agent (or the applicable Lender). A certificate as to the amount of Taxes submitted by Agent to Borrower setting forth Agent’s (or the applicable Lender’s ) basis for the determination of Taxes shall be conclusive evidence of the amount thereof, absent manifest error. Failure on the part of Agent to demand payment from Borrower for any Taxes attributable to any particular period shall not constitute a waiver of Agent’s (or the applicable Lender’s) right to demand payment of such amount for any subsequent or prior period. In the event that Borrower is obligated to pay any additional amounts described in this Section 2.9 in respect of the Loan, the applicable Lender shall, at no cost to such Lender, make commercially reasonable efforts to designate another of its lending offices to be the Applicable Lending Office if, in the reasonable judgment of such Lender, doing so would avoid or materially reduce such additional amounts payable by Borrower and would not be disadvantageous to such Lender. Nothing in the immediately foregoing sentence shall postpone Borrower’s obligation to pay such additional amounts as and when they become payable hereunder.
Appears in 1 contract
No withholdings. All sums payable by Borrower the Borrowers under the NoteNotes, this Loan Agreement and the other Loan Financing Documents, shall be paid in full and without set-off or counterclaims and free of any deductions or withholdings for any and all present and future taxes, levies, imposts, deductions, duties, filing and other fees or charges (collectively, “Taxes”) other than Excluded Taxes). In the event that any Borrower is prohibited by any law from making any such payment free of such deductions or withholdings with respect to Taxes, then such Borrower shall pay such additional amount to the Administrative Agent as may be necessary in order that the actual amount received by Lenders after such deduction or withholding (and after payment of any additional Taxes due as a consequence of the payment of such additional amount) shall equal the amount that would have been received if such deduction or withholding were not required; 62528184 35 provided, however, that no Borrower shall not be obligated to pay such additional amount on account of a specific Lender if at the time such Lender became a “Lender” hereunder, Borrower is the Borrowers are required to deduct or withhold any sums solely because such Lender had a Lender, although having a legal basis to deliverdo so, but failed fails to deliver, deliver to the Administrative Borrower (a) a duly executed copy of United States Internal Revenue Service Form X-0 XXX, X-0 W-8 BEN or W-8 ECI or W-81MY or any successor form or any required renewal thereof, as the case may be, certifying in each case that such Lender is entitled to receive payments hereunder or under the other Loan Financing Documents without deduction or withholding of any United States federal income taxes or at a reduced rate of withholding for such taxes or (b) a duly executed United States Internal Revenue Service Form W-8 BEN or W-9 or any successor form or any required renewal thereof, establishing that a full exemption exists from United States backup withholding tax, and as result of such failure, any Borrower was prohibited by the IRC IRC, from making any such payment free of such deductions or withholding. Notwithstanding anything contained in this Section 2.82.17, in no event will any Lender’s failure to deliver any such forms, or any renewal or extension thereof, affect, postpone or relieve Borrower the Borrowers from any obligation to pay Interest, principal, Additional Interest principal and other amounts due under the Loan Financing Documents (other than amounts due under this Section 2.8 2.17 as a result of a Lender’s failure to deliver such forms). Such additional amount shall be due concurrently with the payment with respect to which such additional amount is owed in the amount of Taxes certified by the Administrative Agent (or the applicable Lender). A certificate as to the amount of Taxes submitted by the Administrative Agent to the Administrative Borrower setting forth the Administrative Agent’s (or the applicable Lender’s ’s) basis for the determination of Taxes shall be conclusive evidence of the amount thereof, absent manifest error. Failure on the part of the Administrative Agent to demand payment from the Administrative Borrower or any other Borrower for any Taxes attributable to any particular period shall not constitute a waiver of the Administrative Agent’s (or the applicable Lender’s) right to demand payment of such amount for any subsequent or prior period. If the Administrative Agent or any Lender shall obtain a refund of any withholdings that have been paid by any Borrower, then, provided, that no Default or Event of Default shall have then occurred and be continuing, the Administrative Agent or such Lender, as the case may be, shall remit to the Administrative Borrower the amount of such refund so received after deducting all costs and expenses that were incurred by the Administrative Agent or such Lender, as the case may be, in connection therewith.
Appears in 1 contract
Samples: Credit Agreement (Cornerstone Core Properties REIT, Inc.)
No withholdings. All sums payable by Borrower Borrowers under the Note, this Loan Agreement and the other Loan Financing Documents, shall be paid in full and without set-off or counterclaims and free of any deductions or withholdings for any and all present and future taxes, levies, imposts, deductions, duties, filing and other fees or charges (collectively, “Taxes”) other than Excluded Taxes. In the event that any Borrower is prohibited by any law from making any such payment free of such deductions or withholdings with respect to Taxes, then such Borrower shall pay such additional amount to Agent as may be necessary in order that the actual amount received by Lenders after such deduction or withholding (and after payment of any additional Taxes due as a consequence of the payment of such additional amount) shall equal the amount that would have been received if such deduction or withholding were not required; 62528184 35 provided, however, that no Borrower shall not be obligated to pay such additional amount on account of a specific Lender if at the time such Lender became a “Lender” hereunder, Borrower is (a) Borrowers are required to deduct or withhold any sums under the law in effect as of the date that such Lender becomes a “Lender” hereunder (unless such law similarly affects Agent or any Lender which was theretofore a “Lender” hereunder and Borrowers are already required to pay such additional amounts to Agent or any such Lender as of such date pursuant to the terms hereof, in which case, Borrowers shall be required to pay such additional amounts to such new “Lender”), (b) solely because such Lender had a Lender, although having a legal basis to deliverdo so, but failed fails to deliver, deliver to Borrower (a) Borrowers a duly executed copy of United States Internal Revenue Service Form X-0 XXX, X-0 W-8 BEN or W-8 ECI or W-81MY or any successor form or any required renewal thereof, as the case may be, certifying in each case that such Lender is entitled to receive payments hereunder or under the other Loan Financing Documents without deduction or withholding of any United States federal income taxes or at a reduced rate of withholding for such taxes taxes, or (bc) solely because such Lender, although having a legal basis to do so, fails to deliver to Borrowers a duly executed United States Internal Revenue Service Form W-8 BEN or W-9 or any successor form or any required renewal thereof, establishing that a full exemption exists from United States backup withholding tax, and as result of such failure, any Borrower was prohibited by the IRC Code, from making any such payment free of such deductions or withholding. Notwithstanding anything contained in this Section 2.82.15, in no event will any Lender’s failure to deliver any such 42 forms, or any renewal or extension thereof, affect, postpone or relieve Borrower Borrowers from any obligation to pay Interest, principal, Additional Interest principal and other amounts due under the Loan Financing Documents (other than amounts due under this Section 2.8 2.15 as a result of a Lender’s failure to deliver such forms). Such additional amount shall be due concurrently with the payment with respect to which such additional amount is owed in the amount of Taxes certified by Agent (or the applicable Lender). A certificate as to the amount of Taxes submitted by Agent to Borrower Borrowers setting forth Agent’s (or the applicable Lender’s ’s) basis for the determination of Taxes shall be conclusive evidence of the amount thereof, absent manifest error. Failure on the part of Agent to demand payment from Borrowers or any other Borrower for any Taxes attributable to any particular period shall not constitute a waiver of Agent’s (or the applicable Lender’s) right to demand payment of such amount for any subsequent or prior period.
Appears in 1 contract
Samples: Credit Agreement (Hines Real Estate Investment Trust Inc)
No withholdings. All sums payable by Borrower under the Note, this Loan Agreement and the other Loan Documents, shall be paid in full and without set-off or counterclaims and free of any deductions or withholdings for any and all present and future taxes, levies, imposts, deductions, duties, filing and other fees or charges charges, excluding Excluded Taxes (collectively, “Taxes”) other than Excluded Taxes). In the event that Borrower is prohibited by any law from making any such payment free of such deductions or withholdings with respect to Taxes, then Borrower shall pay such additional amount to Agent as may be necessary in order that the actual amount received by Lenders after such deduction or withholding (and after payment of any additional Taxes due as a consequence of the payment of such additional amount) shall equal the amount that would have been received if such deduction or withholding were not required; 62528184 35 provided, however, that Borrower shall not be obligated to pay such additional amount on account of a specific Lender if at the time such Lender became a “Lender” hereunder, Borrower is required to deduct or withhold any sums solely because such Lender had a legal basis to deliver, but failed to deliver, to Borrower (a) a duly executed copy of United States Internal Revenue Service Form X-0 XXX, X-0 ECI ECI, W-9 or W-81MY or any successor other form or statement prescribed by law from time to time and applicable to a Lender (in such number of copies as may be prescribed by law from time to time), and any required renewal thereof, as the case may be, certifying in each case which, pursuant to the applicable provisions of an income tax treaty between the United States and the country of residence of the Lender, the IRC, or any applicable rule or regulation under the IRC, indicate that such Lender is entitled to receive payments hereunder or under the other Loan Documents without deduction or withholding of any United States federal income taxes taxes, or at a tax rate that is reduced to zero (or, upon written request of Borrower specifying the applicable form which such Lender may in accordance with law sign with no disadvantageous consequences to it or any of its affiliates as determined by such Lender, at a reduced rate of withholding for such taxes tax or (b) a duly executed United States Internal Revenue Service Form W-8 BEN or W-9 or any successor form or any required renewal thereof, establishing that a full exemption exists from United States backup withholding taxdeduction), and as result of such failure, Borrower was prohibited by the IRC from making any such payment free (or at a reduced rate as aforesaid) of such deductions or withholding. Notwithstanding anything contained in this Section 2.82.9, in no event will any Lender’s failure to deliver any such forms, or any renewal or extension thereof, affect, postpone or relieve Borrower from any obligation to pay Interest, principal, Additional Interest and other amounts due under the Loan Documents (other than amounts due under as expressly set forth above in this Section 2.8 as a result of a Lender’s failure to deliver such forms2.9). Such additional amount shall be due concurrently with the payment with respect to which such additional amount is owed in the amount of Taxes certified by Agent (or the applicable Lender). A certificate as to the amount of Taxes submitted by Agent to Borrower setting forth Agent’s (or the applicable Lender’s ) basis for the determination of Taxes shall be conclusive evidence of the amount thereof, absent manifest error. Failure on the part of Agent to demand payment from Borrower for any Taxes attributable to any particular period shall not constitute a waiver of Agent’s (or the applicable Lender’s) right to demand payment of such amount for any subsequent or prior period. In the event that Borrower is obligated to pay any additional amounts described in this Section 2.9 in respect of the Loan, the applicable Lender shall, at no cost to such Lender, make commercially reasonable efforts to designate another of its lending offices to be the Applicable Lending Office of such Lender if, in the reasonable judgment of such Lender, doing so would avoid or materially reduce such additional amounts payable by Borrower and would not be disadvantageous to such Lender. Nothing in the immediately foregoing sentence shall postpone Borrower’s obligation to pay such additional amounts as and when they become payable hereunder.
Appears in 1 contract
No withholdings. All sums payable by Borrower under the Note, this Loan Agreement and the other Loan Documents, shall be paid in full and without set-off or counterclaims and free of any deductions or withholdings for any and all present and future taxes, levies, imposts, deductions, duties, filing and other fees or charges (collectively, “Taxes”) other than Excluded Taxes. In the event that Borrower is prohibited by any law from making any such payment free of such deductions or withholdings with respect to Taxes, then Borrower shall pay such additional amount to Agent Lender as may be necessary in order that the actual amount received by Lenders Lender after such deduction or withholding (and after payment of any additional Taxes due as a consequence of the payment of such additional amount) shall equal the amount that would have been received if such deduction or withholding were not required; 62528184 35 provided, however, that Borrower shall not be obligated to pay such additional amount on account of a specific Lender if at the time such Lender became a “Lender” hereunder, Borrower is required to deduct or withhold any sums solely because such Lender had Lender, although having a legal basis to deliverdo so, but failed fails to deliver, deliver to Borrower (a) a duly executed copy of United States Internal Revenue Service Form X-0 XXX, X-0 ECI or W-81MY or any successor form or any required renewal thereof, as the case may be, certifying in each case that such Lender is entitled to receive payments hereunder or under the other Loan Documents without deduction or withholding of any United States federal income taxes or at a reduced rate of withholding for such taxes or (b) a duly executed United States Internal Revenue Service Form W-8 BEN or W-9 or any successor form or any required renewal thereof, establishing that a full exemption exists from United States backup withholding tax, and as a result of such failure, Borrower was prohibited by the IRC Code, from making any such payment free of such deductions or withholding. Notwithstanding anything contained in this Section 2.824, in no event will any Lender’s failure to deliver any such forms, or any renewal or extension thereof, affect, postpone or relieve Borrower from any obligation to pay Base Interest, principal, Additional Interest principal and other amounts due under the Loan Documents (other than amounts due under this Section 2.8 24 as a result of a Lender’s failure to deliver such forms). Such additional amount shall be due concurrently with the payment with respect to which such additional amount is owed in the amount of Taxes certified by Agent (or the applicable Lender). A certificate as to the amount of Taxes submitted by Agent Lender to Borrower setting forth Agent’s (or the applicable Lender’s ) basis for the determination of Taxes shall be conclusive evidence of the amount thereof, absent manifest error. Failure on the part of Agent Lender to demand payment from Borrower for any Taxes attributable to any particular period shall not constitute a waiver of AgentLender’s (or the applicable Lender’s) right to demand payment of such amount for any subsequent or prior period.
Appears in 1 contract
Samples: Loan Agreement (KBS Real Estate Investment Trust, Inc.)
No withholdings. All sums payable by Borrower under the Note, this Loan Agreement and the other Loan Documents, shall be paid in full and without set-off or counterclaims and free of any deductions or withholdings for any and all present and future taxes, levies, imposts, deductions, duties, filing and other fees or charges (collectively, “Taxes”) other than Excluded Taxes. In the event that Borrower is prohibited by any law from making any such payment free of such deductions or withholdings with respect to Taxes, then Borrower shall pay such additional amount to Agent as may be necessary in order that the actual amount received by Agent and the Lenders after such deduction or withholding (and after payment of any additional Taxes due as a consequence of the payment of such additional amount) shall equal the amount that would have been received if such deduction or withholding were not required; 62528184 35 provided, however, that Borrower shall not be obligated to pay such additional amount on account of a specific Lender if at the time such Lender became a “Lender” hereunder, Borrower is required to deduct or withhold any sums solely because such Lender had Agent and/or any Lender, although having a legal basis to deliverdo so, but failed fails to deliver, deliver to Borrower (a) a duly executed copy of United States Internal Revenue Service Form X-0 XXX, X-0 ECI or W-81MY or any successor form or any required renewal thereof, as the case may be, certifying in each case that such Lender is entitled to receive payments hereunder or under the other Loan Documents without deduction or withholding of any United States federal income taxes or at a reduced rate of withholding for such taxes or (b) a duly executed United States Internal Revenue Service Form W-8 BEN or W-9 or any successor form or any required renewal thereof, establishing that a full exemption exists from United States backup withholding tax, and as a result of such failure, Borrower was prohibited by the IRC Code, from making any such payment free of such deductions or withholding. Notwithstanding anything contained in this Section 2.824, in no event will Agent’s or any Lender’s failure to deliver any such forms, or any renewal or extension thereof, affect, postpone or relieve Borrower from any obligation to pay Base Interest, principal, Additional Interest principal and other amounts due under the Loan Documents (other than amounts due under this Section 2.8 24 as a result of a Agent’s or any Lender’s failure to deliver such forms). Such additional amount shall be due concurrently with the payment with respect to which such additional amount is owed in the amount of Taxes certified by Agent (or the applicable Lender)Agent. A certificate as to the amount of Taxes submitted by Agent to Borrower setting forth Agent’s (or the applicable Lender’s ) basis for the determination of Taxes shall be conclusive evidence of the amount thereof, absent manifest error. Failure on the part of Agent to demand payment from Borrower for any Taxes attributable to any particular period shall not constitute a waiver of Agent’s (or the applicable Lender’s) right to demand payment of such amount for any subsequent or prior period.
Appears in 1 contract
Samples: Loan Agreement (KBS Strategic Opportunity REIT, Inc.)
No withholdings. All sums payable by Borrower under the Note, this Loan Agreement and the other Loan Documents, shall be paid in full and without set-set- off or counterclaims and free of any deductions or withholdings for any and all present and future taxes, levies, imposts, deductions, duties, filing and other fees or charges (collectively, “‘Taxes”) (other than Excluded Taxes). In the event that Borrower is prohibited by any law from making any such payment free of such deductions or withholdings with respect to Taxes (other than Excluded Taxes), then Borrower shall pay such additional amount to Agent as may be necessary in order that the actual amount received by Lenders after such deduction or withholding (and after payment of any additional Taxes (other than Excluded Taxes) due as a consequence of the payment of such additional amount) shall equal the amount that would have been received if such deduction or ________________________________________________________________________________________________________________________ withholding were not required; 62528184 35 provided, however, that Borrower shall not be obligated to pay such additional amount on account of a specific Lender if at the time such Lender became a “Lender” hereunder, Borrower is required to deduct or withhold any sums solely because such Lender had a legal basis was legally permitted to deliver, but failed to deliver, to Borrower (a) a two (2) duly executed copy and validly completed (including attachments) copies of United States Internal Revenue Service Form X-0 XXX, X-0 ECI or W-81MY W-8 or any successor form or any required renewal thereof, as the case may be, certifying in each case that such Lender is entitled to receive payments hereunder or under the other Loan Documents without deduction or withholding (or at a reduced rate) of any United States federal income taxes or at a reduced rate of withholding for such taxes or (b) a two (2) duly executed (and validly completed (including any attachments)) copies of United States Internal Revenue Service Form W-8 BEN or W-9 or any successor form or any required renewal thereofthereof as the case may be, establishing that a full exemption exists from United States backup withholding tax, and as result of such failure, Borrower was prohibited by the IRC from making any such payment free (or at a reduced rate) of such deductions or withholding. Notwithstanding anything contained in this Section 2.82.10, in no event will any Lender’s failure to deliver any such forms, or any renewal or extension thereof, affect, postpone or relieve Borrower from any obligation to pay Interest, principal, Additional Interest and other amounts due under the Loan Documents (other than amounts due under this Section 2.8 2.10 as a result of a Lender’s failure to deliver such forms). Such additional amount shall be due concurrently with the payment with respect to which such additional amount is owed in the amount of Taxes (other than Excluded Taxes) certified by Agent (or the applicable Lender). A certificate as to the amount of Taxes submitted by Agent to Borrower setting forth Agent’s (or the applicable Lender’s ) basis for the determination of Taxes shall be conclusive evidence of the amount thereof, absent manifest error. Failure on the part of Agent to demand payment from Borrower for any Taxes (other than Excluded Taxes) attributable to any particular period shall not constitute a waiver of Agent’s (or the applicable Lender’s) right to demand payment of such amount for any subsequent or prior period; provided, however, that no demand for any payment hereunder may be made more than one hundred eighty (180) days after the same has accrued. If Borrower is obligated to pay any material additional amounts described in this Section 2.10 to a Lender or Agent, then, at Borrower’s sole reasonable cost and expense, such Lender or Agent, as the case may be, shall make reasonable efforts to designate another lending branch or agency of such Lender or Agent to maintain its share of the Loan if such designation would avoid the need for, or materially reduce the amount of, such additional amounts and would not, in the good faith opinion of such Lender or Agent, result in any adverse economic, tax, legal or regulatory consequences for, or otherwise be disadvantageous to, such Lender or Agent or such lending branch or agency.
Appears in 1 contract
Samples: Property Lease Lease Lease (KBS Real Estate Investment Trust, Inc.)
No withholdings. All sums payable by Borrower under the Note, this Loan Agreement and the other Loan Documents, shall be paid in full and without set-off or counterclaims and free of any deductions or withholdings for any and all present and future taxes, levies, imposts, deductions, duties, filing and other fees or charges (collectively, “Taxes”) (other than Excluded Taxes). In the event that Borrower is prohibited by any law from making any such payment free of such deductions or withholdings with respect to Taxes (other than Excluded Taxes), then Borrower shall pay such additional amount to Agent as may be necessary in order that the actual amount received by Lenders after such deduction or withholding (and after payment of any additional Taxes (other than Excluded Taxes) due as a consequence of the payment of such additional amount) shall equal the amount that would have been received if such deduction or withholding were not required; 62528184 35 provided, however, that Borrower shall not be obligated to pay such additional amount on account of a specific Lender if at the time such Lender became a “Lender” hereunder, Borrower is required to deduct or withhold any sums solely because such Lender had a legal basis was legally permitted to deliver, but failed to deliver, to Borrower (a) a two (2) duly executed copy and validly completed (including attachments) copies of United States Internal Revenue Service Form X-0 XXX, X-0 ECI or W-81MY W-8 or any successor form or any required renewal thereof, as the case may be, certifying in each case that such Lender is entitled to receive payments hereunder or under the other Loan Documents without deduction or withholding (or at a reduced rate) of any United States federal income taxes or at a reduced rate of withholding for such taxes or (b) a two (2) duly executed (and validly completed (including any attachments)) copies of United States Internal Revenue Service Form W-8 BEN or W-9 or any successor form or any required renewal thereofthereof as the case may be, establishing that a full exemption exists from United States backup withholding tax, and as result of such failure, Borrower was prohibited by the IRC from making any such payment free (or at a reduced rate) of such deductions or withholding. Notwithstanding anything contained in this Section 2.82.10, in no event will any Lender’s failure to deliver any such forms, or any renewal or extension thereof, affect, postpone or relieve Borrower from any obligation to pay Interest, principal, Additional Interest and other amounts due under the Loan Documents (other than amounts due under this Section 2.8 2.10 as a result of a Lender’s failure to deliver such forms). Such additional amount shall be due concurrently with the payment with respect to which such additional amount is owed in the amount of Taxes (other than Excluded Taxes) certified by Agent (or the applicable Lender). A certificate as to the amount of Taxes submitted by Agent to Borrower setting forth Agent’s (or the applicable Lender’s ) basis for the determination of Taxes shall be conclusive evidence of the amount thereof, absent manifest error. Failure on the part of Agent to demand payment from Borrower for any Taxes (other than Excluded Taxes) attributable to any particular period shall not constitute a waiver of Agent’s (or the applicable Lender’s) right to demand payment of such amount for any subsequent or prior period; provided, however, that no demand for any payment hereunder may be made more than one hundred eighty (180) days after the same has accrued. If Borrower is obligated to pay any material additional amounts described in this Section 2.10 to a Lender or Agent, then, at Borrower’s sole reasonable cost and expense, such Lender or Agent, as the case may be, shall make reasonable efforts to designate another lending branch or agency of such Lender or Agent to maintain its share of the Loan if such designation would avoid the need for, or materially reduce the amount of, such additional amounts and would not, in the good faith opinion of such Lender or Agent, result in any adverse economic, tax, legal or regulatory consequences for, or otherwise be disadvantageous to, such Lender or Agent or such lending branch or agency.
Appears in 1 contract
No withholdings. All sums payable by Borrower under the Note, this Loan Agreement and the other Loan Documents, shall be paid in full and without set-off or counterclaims and free of any deductions or withholdings for any and all present and future taxes, levies, imposts, deductions, duties, filing and other fees or charges (collectively, “Taxes”) other than Excluded Taxes. In the event that Borrower is prohibited by any law from making any such payment free of such deductions or withholdings with respect to TaxesTaxes as a result of any change in any applicable law, regulation or treaty, or in the interpretation or administration thereof by any domestic or foreign governmental authority charged with the interpretation or administration thereof (whether or not having the force of law), or by any domestic or foreign court, then Borrower shall pay such additional amount to Agent as may be necessary in order that the actual amount received by Lenders after such deduction or withholding (and after payment of any additional Taxes due as a consequence of the payment of such additional amount) shall equal the amount that would have been received if such deduction or withholding were not required; 62528184 35 provided, however, that Borrower shall not be obligated to pay such additional amount amounts attributable to Excluded Taxes. In addition, Borrower shall not be obligated to pay such additional amounts on account of a specific Lender or the Agent if at the time such Lender became a “Lender” hereunderhereunder or at the time Agent became the “Agent” hereunder or as a result of the failure to update a form or document described below or in Section 9.10, Borrower is required to deduct or withhold any sums solely because such Lender or Agent had a legal basis to deliver, but failed to deliver, to Borrower (a) a duly executed copy of United States Internal Revenue Service Form X-0 XXX, X-0 ECI or W-81MY or W-8 IMY and/or any successor form or any required renewal thereof, as the case may be, certifying in each case that such Lender or Agent is entitled to receive payments hereunder or under the other Loan Documents without deduction or withholding of any United States federal income taxes or at a reduced rate of withholding for such taxes or taxes, (b) a duly executed United States Internal Revenue Service Form W-8 BEN or W-9 or any successor form or any required renewal thereof, thereof and/or (c) other required form or documentation establishing that a full exemption exists from United States backup withholding tax, and as result of such failure, Borrower was prohibited by the IRC applicable Legal Requirements, from making any such payment free of such deductions or withholding. Notwithstanding anything contained in this Section 2.82.10, in no event will any Lender’s failure to deliver any such forms, or any renewal or extension thereof, affect, postpone or relieve Borrower from any obligation to pay Interest, principal, Additional Interest and other amounts due under the Loan Documents (other than amounts due under this Section 2.8 2.10 as a result of Agent’s or a Lender’s failure to deliver such forms). Such additional amount shall be due concurrently with the payment with respect to which such additional amount is owed in the amount of Taxes certified by Agent (or the applicable Lender). A certificate as to the amount of Taxes submitted by Agent to Borrower setting forth Agent’s (or the applicable Lender’s ’s) basis for the determination of Taxes shall be conclusive evidence of the amount thereof, absent manifest error. Failure on the part of Agent to demand payment from Borrower for any Taxes attributable to any particular period shall not constitute a waiver of Agent’s (or the applicable Lender’s) right to demand payment of such amount for any subsequent or prior period.
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No withholdings. All sums payable by Borrower under the NoteNotes, this Loan Agreement and the other Loan Documents, shall be paid in full and without set-off or counterclaims and free of any deductions or withholdings for any and all present and future taxes, levies, imposts, deductions, duties, filing and other fees or charges (collectively, “Taxes”) other than Excluded Taxes. In the event that Borrower is prohibited by any law from making any such payment free of such deductions or withholdings with respect to TaxesTaxes as a result of any change in any applicable law, regulation or treaty, or in the interpretation or administration thereof by any domestic or foreign governmental authority charged with the interpretation or administration thereof (whether or not having the force of law), or by any domestic or foreign court, then Borrower shall pay such additional amount to Agent as may be necessary in order that the actual amount received by Lenders after such deduction or withholding (and after payment of any additional Taxes due as a consequence of the payment of such additional amount) shall equal the amount that would have been received if such deduction or withholding were not required; 62528184 35 provided, however, that Borrower shall not be obligated to pay such additional amount amounts attributable to Excluded Taxes. In addition, Borrower shall not be obligated to pay such additional amounts on account of a specific Lender or Agent if at the time such Lender became a “Lender” hereunderhereunder or at the time Agent became the “Agent” hereunder or as a result of the failure to update a form or document described below or in Section 9.10, Borrower is required to deduct or withhold any sums solely because such Lender or Agent had a legal basis to deliver, but failed to deliver, to Borrower (a) a duly executed copy of United States Internal Revenue Service Form X-0 XXX, X-0 ECI or W-81MY or W-8 IMY and/or any successor form or any required renewal thereof, as the case may be, certifying in each case that such Lender or Agent is entitled to receive payments hereunder or under the other Loan Documents without deduction or withholding of any United States federal income taxes or at a reduced rate of withholding for such taxes or taxes, (b) a duly executed United States Internal Revenue Service Form W-8 BEN or W-9 or any successor form or any required renewal thereof, thereof and/or (c) other required form or documentation establishing that a full exemption exists from United States backup withholding tax, and as result of such failure, Borrower was prohibited by the IRC applicable Legal Requirements, from making any such payment free of such deductions or withholding. Notwithstanding anything contained in this Section 2.82.10, in no event will any Lender’s failure to deliver any such forms, or any renewal or extension thereof, affect, postpone or relieve Borrower from any obligation to pay Interest, principal, Additional Interest and other amounts due under the Loan Documents (other than amounts due under this Section 2.8 2.10 as a result of Agent’s or a Lender’s failure to deliver such forms). Such additional amount shall be due concurrently with the payment with respect to which such additional amount is owed in the amount of Taxes certified by Agent (or the applicable Lender). A certificate as to the amount of Taxes submitted by Agent to Borrower setting forth Agent’s (or the applicable Lender’s ’s) basis for the determination of Taxes shall be conclusive evidence of the amount thereof, absent manifest error. Failure on the part of Agent to demand payment from Borrower for any Taxes attributable to any particular period shall not constitute a waiver of Agent’s (or the applicable Lender’s) right to demand payment of such amount for any subsequent or prior period.
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