Payment of Additional Amounts. i. The Partnership shall make all payments on the Series 18 Preferred Units free and clear of and without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every net payment made to such holders, after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required. ii. The Partnership shall not be required to pay any Additional Amounts for or on account of: a) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder 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 by reason of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;
Appears in 1 contract
Sources: Limited Partnership Agreement (Brookfield Infrastructure Partners L.P.)
Payment of Additional Amounts. i. The Partnership shall make all Unless otherwise required by Bermuda law, neither the Company nor any Guarantor will deduct or withhold from payments on made with respect to the Series 18 Preferred Units free Securities and clear of and without withholding or deduction at source forthe Guarantees, or if any, on account of, of any present or future taxes, fees, duties, assessments Taxes. In the event that either the Company or governmental charges of whatever nature imposed any Guarantor is required to withhold or levied by or deduct on behalf account of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments Taxes due from any payment made under or governmental charges are required with respect to be withheld or deducted by (i) the laws (Securities or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for Guarantees, as the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredcase may be, the Partnership shallCompany or such Guarantor, subject to as the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Acase may be, will pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every the net amount received by each Holder of Securities will equal the amount that the Holder would have received if the Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment made to a Holder to the extent: (a) that any Taxes would not have been so imposed but for the existence of any present or former connection between the Holder and Bermuda, other than the mere receipt of the payment, acquisition, ownership or disposition of such holdersSecurities or the exercise or enforcement of rights under the Securities, after such the Guarantees, if any, or this Indenture; (b) of any estate, inheritance, gift, sales, transfer or personal property Taxes imposed with respect to the Securities or any other Taxes payable other than by withholding or deduction deduction, except as described below or as otherwise provided in this Indenture; (including b) that any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
a) any tax, fee, duty, assessment or governmental charge of whatever nature that Taxes would not have been imposed but for the fact that such holder 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 by reason presentation of the mere ownership ofSecurities, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment (where presentation is required required, for payment) payment on a date more than 30 days after the Relevant Date (date on which the payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the holder beneficiary or Holder thereof would have been entitled to such amounts if it Additional Amounts had the Securities been presented such units for payment on any day within date during such 30 30-day period; (d) that the Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar claim for exemption, if: (i) the making of the declaration or claim is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant taxing authority as a precondition to an exemption from, or reduction in, the relevant Taxes; and (ii) at least 60 days prior to the first payment with respect to which the Company or such Guarantor shall apply this clause (d), the Company or such Guarantor shall have notified all Holders of the Securities in writing that they shall be required to provide this declaration or claim; (e) any Taxes imposed under Sections 1471 through 1474 of the Code, any successor law or regulation implementing or complying with, or introduced in order to conform to, such sections or any intergovernmental agreement or any agreement entered into pursuant to section 1471(b)(1) of the Code; (f) any Taxes imposed on overall net income or any branch profits Taxes; (g) that a beneficiary or settlor with respect to a fiduciary, a member of a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the holder of a Note in the case of a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment; or (h) any combination of the foregoing. The “Relevant Date” means, Company and such Guarantor shall also (w) withhold or deduct such Taxes as required; (x) remit the full amount of Taxes deducted or withheld to the relevant taxing authority in respect accordance with all applicable laws; (y) use reasonable efforts to obtain from each relevant taxing authority imposing the Taxes certified copies of tax receipts evidencing the payment of any paymentTaxes deducted or withheld; and (z) upon request, make available to the Holders of the Securities, within 60 days after the date the payment of any Taxes deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company or such Guarantor and, notwithstanding the Company’s or such Guarantor’s efforts to obtain the receipts, if the same are not obtainable, other evidence of such payments. In addition, the Company or any Guarantor will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and additional amounts with respect thereto, payable in Bermuda or the United States, or any political subdivision or taxing authority of or in the foregoing with respect to the creation, issue, offering, enforcement, redemption or retirement of the Securities or Guarantees. At least 30 days prior to each date on which such any payment first becomes under or with respect to the Securities is due and payable, but if the full amount Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment, the Company (or in respect of the moneys Guarantees, such Guarantor) shall deliver to the Trustee and the Securities Administrator an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amounts so payable has not been received by and will set forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the Holders on the payment date. Whenever in this Indenture there is mentioned, in any context, the payment of principal of and premium, if any, Additional Amounts, if any, or interest (including defaulted interest), if any, or any other amount payable on or prior with respect to any of the Securities, such due datemention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section 3.07 to the extent that, it means in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the first date on which provisions of this Section 3.07 and express mention of the full amount payment of Additional Amounts in those provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made (if applicable). If payments with respect of the Securities or any Guarantees become subject generally to the taxing jurisdiction of any Territory or any political subdivision or taxing authority thereof or therein having power to tax, other than or in addition to Bermuda or the United States or any political subdivision or taxing authority therein or thereof having power to tax, immediately upon becoming aware thereof the Company shall notify the Trustee in writing of such moneys event, and thereupon the Company or such Guarantor, as the case may be, shall be obligated to pay Additional Amounts in respect thereof on terms corresponding to the terms of the foregoing provisions of this Section 3.07 with the substitution for (or, as the case may be, in addition to) the references herein to Bermuda or any political subdivision or authority therein or thereof having been so received and being available for payment power to holders and notice tax of references to that effect shall have been duly given to the Series 18 Holders;other or additional Territory or any political subdivision
Appears in 1 contract
Sources: Indenture (Nabors Industries Inc)
Payment of Additional Amounts. i. The Partnership (a) All payments and deliveries made by the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, the 2017 Repurchase Price, if applicable, and the Tax Redemption Price, if applicable), payments of interest, including any Additional Interest and payments of cash or deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall make all payments on the Series 18 Preferred Units free and clear of and be made without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which the Company is, or is deemed to be, organized, engaged in business or otherwise resident for tax purposes, or from or through which payment is made or deemed to be made on the Company behalf (including the jurisdiction of the Paying Agent) or any political subdivision or taxing authority thereof or therein (each, as applicable, a “Relevant Taxing Jurisdiction”), unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Partnership shall, subject Company or any successor to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, Company shall pay to the Series 18 Holders each Holder such additional amounts (the “Additional Amounts”) as distributions as may be necessary so to ensure that every the net payment made to such holders, amount received by the beneficial owner after such withholding or deduction (including and after deducting any such withholding or deduction from such taxes on the Additional Amounts), ) shall be equal to the amounts the Partnership that would otherwise have been required to pay received by such beneficial owner had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any ; provided that no Additional Amounts shall be payable:
(i) for or on account of:
a(A) any tax, fee, duty, assessment or other governmental charge of whatever nature that would not have been imposed but for for:
(1) the fact that existence of any present or former connection between the Holder or beneficial owner of such holder was Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or ADSs or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a residentnational, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the resident of such Relevant Taxing Jurisdiction or any political subdivision treated as a resident thereof or otherwise being or having been physically present or engaged in a trade or business therein or having or having had some connection with a permanent establishment therein;
(2) the Relevant Taxing Jurisdiction other than by reason presentation of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment such Note (where in cases in which presentation is required for paymentrequired) more than 30 days after the later of the date on which the payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the 2017 Repurchase Price, if applicable), premium, if any, and interest on, such Note, including any Additional Interest on, or delivery of ADSs with respect thereto, such Note became due and payable pursuant to the terms thereof or was made or duly provided for; or
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Date (except Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the holder Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner and such Holder or beneficial owner is legally able to comply;
(B) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(C) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(D) any withholding or deduction that is imposed or levied on a payment to an individual pursuant to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive;
(E) any withholding or deduction required by sections 1471 through 1474 of the United States Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted to implement FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(F) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C), (D) or (E); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, the 2017 Repurchase Price, if applicable, and the Tax Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, or delivery of ADSs with respect to, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment or delivery to the extent that such payment or delivery would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such amounts Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof. The Trustee and the Paying Agent shall also be entitled to make any withholding or deduction pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986 (the “Code”) or otherwise imposed pursuant to Sections 1471 through 1474 of the Code and any regulations or agreements thereunder or official interpretations thereof. The Company shall make any required withholding or deduction and remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. Upon reasonable request, the Company shall provide certified copies of tax receipts evidencing the payment of any taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such taxes, or if it had presented such units for tax receipts are not available, certified copies or other reasonable evidence of such payments as soon as reasonably practicable to the Trustee. Such copies shall be made available to the Holders upon reasonable request and shall be made available at the offices of the Paying Agent. In the event that the Company is obligated to pay Additional Amounts under or with respect to any payment on, or delivery of ADSs with respect to the Notes, at least 30 days prior to the date of such payment or delivery, the Company shall deliver to the Trustee an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable and such other information necessary to enable the Paying Agent to pay Additional Amounts on any day within the relevant payment or delivery date (unless such obligation to pay Additional Amounts arises less than 30 day perioddays prior to the relevant payment or delivery date, in which case the Company shall deliver such Officer’s Certificate as promptly as practicable thereafter). The “Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Company shall pay and indemnify each Holder and beneficial owner for any present or future stamp, issue, registration, court or documentary taxes, or similar charges or levies (including any related interest or penalties with respect thereto) or any other excise, property or similar taxes or similar charges or levies (including any related interest or penalties with respect thereto) that arise in a Relevant Date” meansTaxing Jurisdiction from the execution, issuance, delivery, registration, enforcement or initial resale by the Initial Purchasers under the Purchase Agreement of, or payments under, the Notes, this Indenture, or any other document or instrument in relation thereto (other than in each case those taxes excluded by subsections (i)(A), (B), (D), (E) and (F) and (ii) of this Section 4.07 and in connection with a transfer of Notes).
(b) Any reference in this Indenture or the Notes in any context to the payment of cash or delivery of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the 2017 Repurchase Price, if applicable and the Tax Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any amount payable with respect to such Note, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable with respect to that amount under the obligations referred to in this Section 4.07.
(c) The foregoing obligations shall survive any termination, defeasance or discharge of this Indenture, any payment, the date on which such payment first becomes due and payable, but if the full amount transfer or conversion of the moneys payable has not been received Notes by the Paying Agent on a Holder or prior beneficial owner, and will apply mutatis mutandis to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given any successor to the Series 18 Holders;Company.
Appears in 1 contract
Sources: Indenture (TAL Education Group)
Payment of Additional Amounts. i. The Partnership 10.7.1 All payments of principal, premium and interest in respect of the Securities shall make all payments on the Series 18 Preferred Units free and clear of and be made without withholding or deduction at source for, or on account of, for any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or on behalf of Brazil or any Relevant Taxing JurisdictionSuccessor Jurisdiction or any authority therein or thereof having power to tax ("Foreign Taxes"), unless except to the extent that such taxes, fees, duties, assessments or governmental charges Foreign Taxes are required by Brazil, such Successor Jurisdiction or any such authority to be withheld or deducted by (i) deducted. In the laws (or any regulations or rulings promulgated thereunder) event of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredfor any Foreign Taxes, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, Company shall pay to the Series 18 Holders such additional amounts (the “"Additional Amounts”") as distributions will result in receipt by the Holders of Securities on the respective due dates of such amounts as may be necessary so that every net payment made to such holders, after would have been received by them had no such withholding or deduction (including for any Foreign Taxes payable in respect of Additional Amounts) been required, except that no such Additional Amounts shall be payable with respect to any payment on a Security:
(i) to, or to a third party on behalf of, a Holder who is liable for any such withholding taxes, duties, assessments or deduction from such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
a) any tax, fee, duty, assessment or other governmental charge of whatever nature that charges which would not have been imposed but for (A) a connection between the fact that Holder and Brazil other than the mere holding of such holder was Security and the receipt of payments with respect to such Security or (B) failure by the Holder to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with Brazil or a resident, domiciliary or national ofSuccessor Jurisdiction, or engaged in business applicable political subdivision or maintained a permanent establishment authority thereof or was physically present intherein having power to tax, the Relevant Taxing Jurisdiction of such Holder, if compliance is required by such Successor Jurisdiction, or any political subdivision or authority thereof or otherwise had some connection with therein having power to tax as a precondition to exemption from, or reduction in the Relevant Taxing Jurisdiction other than by reason of the mere ownership rate of, the tax, assessment or receipt other governmental charge and the Company has given the Holders at least 30 days' notice that Holders will be required to provide such certification, identification or other requirement;
(ii) in respect of payment underany such taxes, the Series 18 Preferred Units duties, assessments or any Series 18 Preferred Units presented for payment other governmental charges with respect to a Security surrendered (where presentation if surrender is required for paymentrequired) more than 30 days after the Relevant Date (date on which such payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the holder Holder of such Security would have been entitled to such amounts if it had presented Additional Amounts on surrender of such units Security for payment on any the last day within of such 30 30-day period). The “Relevant Date” means;
(iii) in respect of estate, inheritance, gift, sales, transfer, personal property or similar tax, assessment or governmental charge imposed with respect to a Security; --------------------------------------------------------------------------------
(iv) in respect of any paymenttax, assessment or other governmental charge payable otherwise than by deduction or withholding from payments on any series of Securities or by direct payment by the date Company in respect of claims made against the Company;
(v) where such withholding or deduction is imposed on which such a payment first becomes due to an individual and payable, but if is required to be made pursuant to any European Union Directive on the full amount taxation of savings implementing the conclusions of the moneys payable has not been received by ECOFIN Council meeting of November 26-27, 2000 or any law implementing or complying with, or introduced in order to conform to, such directive; or
(vi) in respect of any combination of the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;above.
Appears in 1 contract
Sources: Indenture (Vale Overseas LTD)
Payment of Additional Amounts. i. The Partnership (a) All payments made by the Company under, or with respect to, the Notes shall make all payments on the Series 18 Preferred Units be made free and clear of of, and without withholding or deduction at source for, for or on account of, of any present or future taxestax, feesduty, dutieslevy, assessments impost, assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 or of the United States, Mexico, any Relevant jurisdiction in which the Company is, or any successor of the Company is, organized (wherein any successor assumes the obligations of the Notes and this Indenture following a consolidation or merger or a transfer, conveyance, sale, lease or disposition of all or substantially all of the Company’s assets and properties), or any other jurisdiction through which payments on the Notes are made (a “Taxing Jurisdiction”). , unless the Company is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If a withholding the Company is so required to withhold or deduction at source is requireddeduct any amount for, or on account of, such Taxes from any payment made under or with respect to the Notes, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, Company shall pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every the net payment made to such holders, amount received by each Holder (including Additional Amounts) after such withholding or deduction (including any shall not be less than the amount such withholding or deduction from Holder would have received if such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have Taxes had not been required to pay had no such withholding be withheld or deduction been required.
ii. The Partnership shall not be required deducted; provided, however, that the foregoing obligation to pay any Additional Amounts for or on account ofdoes not apply to:
a(1) any tax, fee, duty, assessment Taxes imposed solely because at any time there is or governmental charge of whatever nature that would not have been imposed but for the fact that such holder was a residentconnection between the Holder or beneficial owner of the Notes, domiciliary as the case may be, and a Taxing Jurisdiction, including such Holder or national of, beneficial owner being or having been a citizen or resident of such Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business or maintained having had 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 therein (other than by reason the mere purchase of the mere ownership ofNotes, or receipt of a payment underor the ownership or holding of the Notes);
(2) any estate, inheritance, gift, sales, transfer, personal property or similar Tax imposed with respect to the Notes;
(3) any Taxes imposed solely because the Holder or any other person fails to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with a Taxing Jurisdiction of the Holder or any beneficial owner of the Note, if compliance is required by the applicable law, regulation or by an applicable income tax treaty of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of, the Series 18 Preferred Units tax, assessment or other governmental charge, and the Company has given the Holders at least thirty (30) days’ notice that Holders shall be required to provide such information and identification;
(4) any Series 18 Preferred Units presented Taxes payable otherwise than by deduction or withholding from payments on the Notes;
(5) any Taxes that would have been avoided by presenting for payment (where presentation is required required) the relevant Note to another Paying Agent;
(6) any Taxes with respect to such Note presented for payment) payment more than 30 thirty (30) days after the Relevant Date (date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the holder Holders of such Note would have been entitled to such amounts if it had presented Additional Amounts on presenting such units Note for payment on any day within date during such 30 30-day period). The “Relevant Date” means;
(7) any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note;
(8) any Taxes withheld or deducted on or in respect of any paymentNote pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the date on which “Code”), as amended (commonly referred to “FATCA”), any treaty, law, regulation or other official guidance enacted by the United States implementing FATCA, any agreement between the Company and the United States implementing FATCA pursuant to Section 1471(b)(1) of the Code, as amended, or any law of any jurisdiction implementing an intergovernmental approach to FATCA; or
(9) any combination of the foregoing.
(c) The obligations in Section 4.04(a) and Section 4.04(b) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor to the Company. The Company shall (i) make such payment first becomes due withholding or deduction and payable, but if (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Company shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within thirty (30) days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Company, furnish such other documentation that provides reasonable evidence of such payment by the Company.
(d) The exception to the Company’s obligations to pay Additional Amounts will not apply if (i) the provision of information, documentation or other evidence would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulation (including proposed regulations) and administrative practice, or (ii) Article 166, Section II, paragraph a), of the moneys payable has not been received Mexican Income Tax Law (Ley del Impuesto Sobre la Renta) (or a substitute or equivalent provision) is in effect, unless (A) the provision of the information, documentation or other evidence is expressly required by the Paying Agent applicable Mexican laws and regulations in order to apply Article 166, Section II, paragraph a), of the Mexican Income Tax Law (or substitute or equivalent provision), (B) the Company cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican laws and regulations on its own through reasonable diligence and (C) the Company would not otherwise meet the requirements for application of the applicable Mexican laws and regulations.
(e) Section 4.04(b) does not require, and shall not be construed to require, that any Holder, including any non-Mexican pension fund, retirement fund, tax-exempt organization or prior financial institution, register with the Mexican Tax Management Service (Servicio de Administración Tributaria) or the Mexican Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) to such due dateestablish eligibility for an exemption from, it means or a reduction of, Mexican withholding taxes.
(f) Any reference in this Indenture, any supplemental indenture or the first date Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Company shall be deemed to include all Additional Amounts, if any that may be payable with respect to that amount under the obligations referred to in this subsection. Payment of any Additional Amounts with respect to interest shall be considered as an interest payment under, or with respect to, the Notes.
(g) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 4.04 are based on which rates of deduction or withholding of withholding taxes in excess of the full amount appropriate rate applicable to the Holder of such moneys having been so received Notes, and being available as a result thereof such Holder is entitled to make a claim for payment a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, and without any further action, be deemed to holders have assigned and notice transferred all right, title and interest to that effect shall have been duly given any such claim for a refund or credit of such excess to the Series 18 Holders;Company. However, by making such assignment, the Holder makes no representation or warranty that the Company shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
(h) Notwithstanding anything to the contrary contained in this Indenture, the Company may, to the extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America from principal or interest payments.
Appears in 1 contract
Sources: Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. i. The Partnership 10.7.1 All payments in respect of the Securities shall make all payments on the Series 18 Preferred Units free and clear of and be made without withholding or deduction at source for, or on account of, for any present or future taxes, fees, duties, assessments or other governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or on behalf of the Cayman Islands, Brazil or any Relevant Taxing JurisdictionSuccessor Jurisdiction or any authority therein or thereof having power to tax (“Foreign Taxes”), unless except to the extent that such taxes, fees, duties, assessments or governmental charges Foreign Taxes are required by the Cayman Islands, Brazil, such Successor Jurisdiction or any such authority to be withheld or deducted by (i) deducted. In the laws (or any regulations or rulings promulgated thereunder) event of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredfor any Foreign Taxes, the Partnership shallCompany or the Guarantor, subject as the case may be, shall make such deduction or withholding, make payment of the amount so withheld to the limitations appropriate governmental authority and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be are necessary so to ensure that every the net payment made to amounts received by the Holders of Securities after such holderswithholding or deduction equals the respective amounts of principal, after premium and interest which would have been receivable in respect of such Securities had no such withholding or deduction (including for any Foreign Taxes payable in respect of Additional Amounts) been required, except that no such Additional Amounts shall be payable with respect to any payment on a Security:
(i) to, or to a third party on behalf of, a Holder who is liable for any such withholding taxes, duties, assessments or deduction from other governmental charges in respect of such Additional Amounts)Security by reason of (A) a connection between the Holder and the Cayman Islands, shall be equal Brazil or such Successor Jurisdiction other than the mere holding of such Security and the receipt of payments with respect to such Security or (B) failure by the amounts Holder to comply with any certification, identification or other reporting requirement concerning the Partnership would otherwise have been required nationality, residence, identity or connection with the Cayman Islands, Brazil or a Successor Jurisdiction, or applicable political subdivision or authority thereof or therein having power to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
a) any tax, feeof such Holder, dutyif compliance is required by the Cayman Islands, assessment Brazil or governmental charge of whatever nature that would not have been imposed but for the fact that such holder was a residentSuccessor Jurisdiction, 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 or authority thereof or otherwise had some connection with therein having power to tax as a precondition to exemption from, or reduction in the Relevant Taxing Jurisdiction other than by reason of the mere ownership rate of, the tax, assessment or receipt other governmental charge and the Company has given the Holders at least 30 days’ notice that Holders will be required to provide such certification, identification or other requirement;
(ii) in respect of payment underany such taxes, the Series 18 Preferred Units duties, assessments or any Series 18 Preferred Units presented for payment other governmental charges with respect to a Security surrendered (where presentation if surrender is required for paymentrequired) more than 30 days after the Relevant Date (date on which such payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the holder Holder of such Security would have been entitled to such amounts if it had presented Additional Amounts on surrender of such units Security for payment on any the last day within of such 30 30-day period). The “Relevant Date” means;
(iii) in respect of estate, inheritance, gift, sales, transfer, personal property or similar tax, assessment or governmental charge imposed with respect to a Security;
(iv) in respect of any paymenttax, assessment or other governmental charge payable otherwise than by deduction or withholding from payments on any series of Securities or by direct payment by the date Company or the Guarantor in respect of claims made against the Company or the Guarantor;
(v) where such withholding or deduction is imposed on which such a payment first becomes due to an individual and payable, but if is required to be made pursuant to any European Union Directive on the full amount taxation of savings implementing the conclusions of the moneys payable has not been received by ECOFIN Council meeting of November 26-27, 2000 or any law implementing or complying with, or introduced in order to conform to, such directive; or
(vi) in respect of any combination of the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;above.
Appears in 1 contract
Sources: Indenture (Vale Overseas LTD)
Payment of Additional Amounts. i.
(a) The Partnership Issuer shall make all payments of, or in respect of, principal, premium (if any) and interest on the Series 18 Preferred Units Notes free and clear of of, and without withholding or deduction at source for, for or on account of, of any present or future taxestax, feeslevy, dutiesimpost, assessments duty, assessment or other governmental charges of whatever nature imposed charge whatsoever and wherever imposed, assessed, levied or levied by collected, including any interest, additions to tax or on behalf of any Relevant Taxing Jurisdictionpenalties applicable thereto (“Taxes”), unless such taxes, fees, duties, assessments withholding or governmental charges are deduction is required by law.
(b) If the Issuer or any Paying Agent is required to be withheld deduct or deducted by (i) withhold any amount in respect of Taxes for the laws account of Panama (or any regulations political subdivision thereof or rulings promulgated thereunderany authority therein or thereof having the power to tax) of or any other jurisdiction (or any political subdivision or any authority thereof or therein) from or through which such payments are made (each, a “Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction”). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, Issuer shall pay to the Series 18 Holders a Holder such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every the net amount received by such Holder will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted, it being understood that for Panama tax purposes the payment made to such holders, after such withholding or deduction (including any such withholding or deduction from of such Additional Amounts), shall Amounts will be equal to the amounts the Partnership would otherwise have been required deemed and construed as additional interest.
(c) The obligation to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for to any Holder in clause (b) immediately above, however, will not apply to or on account in respect of:
a(i) any tax, fee, duty, assessment or governmental charge of whatever nature Taxes that would not have been imposed so imposed, assessed, levied or collected but for the fact that such holder was the Holder or beneficial owner of the Note (or a residentfiduciary, domiciliary settlor, beneficiary, member or national shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation) having some present or former connection with a Relevant Jurisdiction, including such Holder (1) being or having been a domiciliary, national or resident of the Relevant Jurisdiction, (2) engaging or having been engaged in a trade or business in the Relevant Jurisdiction, (3) maintaining or having maintained an office, a permanent establishment or was physically present in, branch in the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise had some connection with the Relevant Taxing Jurisdiction other than by reason of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;or
Appears in 1 contract
Sources: Indenture
Payment of Additional Amounts. i. The Partnership shall Company will make all payments on of principal of, and premium (if any) and interest on, the Series 18 Preferred Units free and clear Notes of and any series without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf within Luxembourg, any jurisdiction in which ArcelorMittal is resident for tax purposes or, in the case of a successor entity, any jurisdiction in which such successor entity is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Partnership shallCompany or any successor entity, subject as the case may be, will make such deduction or withholding, make payment of the amount so withheld to the limitations appropriate governmental authority and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, will pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every net payment made to will result in the receipt by the Holders of such holders, after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership that would otherwise have been required to pay received by such Holders had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any by the Relevant Jurisdiction, except that no Additional Amounts will be payable:
(a) for or on account of:
a(i) any tax, fee, duty, assessment or other governmental charge of whatever nature that would not have been imposed but for for:
(A) the fact that existence of any present or former connection between the Holder or beneficial owner of such holder was Note, as the case may be, and the Relevant Jurisdiction including, without limitation, such Holder or beneficial owner being or having been a resident, domiciliary citizen or national of, resident of such Relevant Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or maintained having or having had a permanent establishment or was physically present intherein, the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise had some connection with the Relevant Taxing Jurisdiction other than by reason of merely holding such Note or the mere ownership of, or receipt of payment under, payments thereunder;
(B) the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment presentation of such Note (where presentation is required for paymentrequired) more than 30 days after the Relevant Date later of the date on which the payment of the principal of, or premium (if any) or interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for, except to the extent that the holder Holder thereof would have been entitled to such amounts Additional Amounts if it had presented such units Note for payment on any day date within such 30 30-day period). The “;
(C) the failure of the Holder or beneficial owner to comply with a timely and reasonable request of the Company or any successor entity addressed to the Holder or beneficial owner, as the case may be, to provide information, documentation and certification concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with any Relevant Date” meansJurisdiction, if and to the extent that due and timely compliance with such request would under applicable law, regulation or administrative practice have reduced or eliminated any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(D) the presentation of such Note (where presentation is required) for payment in the Relevant Jurisdiction, unless such Note could not have been presented for payment elsewhere;
(ii) any estate, inheritance, gift, sale, transfer, excise or personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge that is payable other than by deduction or withholding from a payment on or in respect of a Note;
(iv) any paymenttax, assessment or other governmental charge imposed by the date on which Foreign Account Tax Compliance Act pursuant to sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to section 1471(b) of the Code and any intergovernmental agreements (and related legislation or official administrative guidance) implementing the foregoing; or
(v) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (i), (ii), (iii) and (iv); or
(b) with respect to any payment of the principal of, or premium (if any) or interest on, such Note to a Holder who is a fiduciary, partnership or Person other than the sole beneficial owner of any payment to the extent that such payment first becomes due would be required to be included in the income under the laws of a Relevant Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner, or beneficial owner been the Holder thereof. Whenever there is mentioned in any context the payment of principal of, and payableany premium or interest on, but if any Note, such mention will be deemed to include payment of Additional Amounts provided for in the full amount Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. For the avoidance of doubt, in no event shall either of the moneys payable has not been received by Trustee or the Paying Agent on Securities Administrator have any duty, responsibility or prior obligation to such due dateconfirm, it means verify or otherwise review any calculation or other determination in connection with Additional Amounts or any other possible make-whole premiums, and neither the first date on which Trustee nor the full amount of such moneys having been so received and being available for payment to holders and notice to that effect Securities Administrator shall have been duly given any liability in connection with, related to the Series 18 Holders;or arising out of any such calculations or determinations.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership shall make all All payments on by the Series 18 Preferred Units Issuer in respect of the Notes and the Indenture and by the Guarantor in respect of the Guarantee and the Indenture will be made free and clear of and without deduction or withholding or deduction at source for, for or on account of, of any present or future taxes, fees, duties, assessments assessments, fees or other governmental charges of whatever nature ("Taxes") imposed or levied by or on behalf of Luxembourg, the Russian Federation, any Relevant jurisdiction from or through which a payment is made or any political subdivision or taxing authority thereof or therein (each, a "Taxing Jurisdiction"), unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredrequired by law. If the Issuer is required to make any withholding or deduction for or on account of any Taxes from any payment made under or with respect to the Notes, or if the Guarantor is required to make any withholding or deduction for or on account of any Taxes imposed by a Taxing Jurisdiction from any payment made under or with respect to the Guarantee, the Partnership shallIssuer will pay (or, subject in respect of the Guarantee, the Guarantor will pay) as additional interest to any Holder of the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders Notes such additional amounts (the “"Additional Amounts”") as distributions as may be necessary so in order that every net payment made to by the Issuer on such holders, Note or by the Guarantor on the Guarantee after such deduction or withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
aof any Taxes will not be less than the amount then due and payable on such Note or the Guarantee. The foregoing obligation to pay Additional Amounts, however, will not apply to any (i) any tax, fee, duty, assessment or governmental charge of whatever nature Taxes that would not have been imposed but for the fact that existence of any present or former connection between such holder was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, Holder of the Relevant Taxing Jurisdiction or Notes and any political subdivision thereof or otherwise had some connection with the Relevant Taxing Jurisdiction other than by reason of the mere ownership of, or receipt of such payment underor the ownership or holding of such Note, (ii) Taxes that would not have been imposed but for the Series 18 Preferred Units or any Series 18 Preferred Units presented presentation by the Holder of such Note for payment (where presentation is required for payment) on a date more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment first becomes became due and payable or the date on which payment thereof is duly provided for, whichever occurs later, (iii) Taxes required to be deducted or withheld by any Paying Agent from a payment on a Note or the Guarantee, if such payment can be made without deduction or withholding by any other Paying Agent, (iv) Taxes that would not have been imposed but for the failure of the Holder to comply with the Issuer's written request addressed to the Holder at least 60 days prior to the relevant payment to provide information with respect to any reasonable certification, documentation, information or other reporting requirement concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of the Holder of such Note, (v) Taxes imposed on a payment to an individual that are required to be made pursuant to European Union Directive 2003/48/EC or any other European Union Directive implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive and (vi) estate, inheritance, gift, sale or excise tax. The Guarantee also applies to Additional Amounts payable by the Issuer. The Issuer or the Guarantor, as the case may be, shall make any such withholding or deduction for or on account of Taxes and shall remit the full amount deducted or withheld to the relevant authority in accordance with the applicable law. The Issuer or the Guarantor, as the case may be, shall furnish to the Holders of Notes that are outstanding on the date of the required payment within 30 days after the date the payment of any Taxes is due pursuant to applicable law, certified copies of tax receipts evidencing that such payment has been made by the Issuer or the Guarantor, as the case may be. The Issuer and the Guarantor shall indemnify and hold harmless each Holder on the date of the required payment of any Taxes and upon written request reimburse each such Holder for the amount of (i) any Taxes (other than net income taxes) levied on and paid by such Holder as a result of payments made under or with respect to the outstanding Notes or the Guarantee, (ii) any liability (other than any liability relating to any net income taxes) (including penalties, interest and expense) arising therefrom or with respect thereto, and (iii) any Taxes imposed with respect to any reimbursement under clause (i) or (ii) above. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Guarantee is due and payable, but if the full Issuer or the Guarantor, as the case may be, becomes obligated to pay Additional Amounts with respect to such payment, the Issuer or the Guarantor, as the case may be, shall deliver to the Trustee (and each Paying Agent other than the Trustee) an Officer's Certificate certifying that the Issuer will make a withholding or deduction for or on account of Taxes and remit the same to the relevant authority, attesting to the fact that such Additional Amounts will be payable and the amounts so payable, and setting forth such other information as is necessary to enable the Trustee to pay such Additional Amounts to the Holders on the payment date. Whenever in this Indenture there is mentioned, in any context, the payment of principal, interest (including Defaulted Interest) or any other amount payable on or with respect to any of the moneys payable has not been received by Notes or the Paying Agent on or prior Guarantee, such reference shall be deemed to such due date, it means include mention of the first date on which the full amount payment of such moneys having been so received and being available Additional Amounts provided for payment to holders and notice to that effect shall have been duly given in this Clause 4.11 to the Series 18 Holders;extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Clause 4.11, and express mention of the payment of Additional Amounts in certain provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made. The Issuer and the Guarantor, jointly and severally, hereby covenant to indemnify the Trustee (and each other Paying Agent) (which shall include their respective directors, officers, employees and agents) for, and to hold it harmless against any loss, liability or reasonable expenses incurred without gross negligence, bad faith or wilful misconduct on such Person's part, arising out of or in connection with actions taken or omitted by any of them in reliance on any Officer's Certificate furnished pursuant to this Clause 4.11 or the failure of the Trustee (or other Paying Agent) for any reason (other than its own gross negligence, bad faith or wilful misconduct) to receive on a timely basis such Officer's Certificate. The obligations of the Issuer and the Guarantor under this Clause 4.11 shall survive the resignation or removal of the Trustee or any Paying Agent, the termination of the Indenture and the payment of all amounts under or with respect to this Indenture, the Notes and the Guarantee.
Appears in 1 contract
Sources: Indenture (Mobile Telesystems Ojsc)
Payment of Additional Amounts. i. (a) The Partnership Company shall make all payments on the Series 18 Preferred Units B Preference Shares free and clear of and without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including including, without limitation, a holding by a court of competent jurisdiction or by a taxing authority in any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership Company shall, subject to the certain limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Adescribed below, pay to the holders of the Series 18 Holders B Preference Shares such additional amounts (the “Additional Amountsadditional amounts”) as distributions dividends as may be necessary so that every net payment made to such holderspayment, after such withholding or deduction (including any such withholding or deduction from such Additional Amountsadditional amounts), shall be equal to the amounts the Partnership Company would otherwise have been required to pay had no such withholding or deduction been required.
ii. (b) The Partnership Company shall not be required to pay any Additional Amounts additional amounts for or on account of:
a(i) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder 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 by reason of the mere ownership of, or receipt of payment under, the such Series 18 Preferred Units B Preference Shares or any Series 18 Preferred Units B Preference Shares presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units shares for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by the Paying Agent dividend disbursing agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the holders of the Series 18 HoldersB Preference Shares;
(ii) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge or any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payment of the liquidation preference or of any dividends on the Series B Preference Shares;
(iii) any tax, fee, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure by the holder of such Series B Preference Shares to comply with any reasonable request by the Company addressed to the holder within 90 days of such request (a) to provide information concerning the nationality, residence or identity of the holder or (b) to make any declaration or other similar claim or satisfy any information or reporting requirement that is required or imposed by statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, fee, duty, assessment or other governmental charge;
(iv) any tax, fee, duty, assessment or governmental charge required to be withheld or deducted under Sections 1471 through 1474 of the Code (or any Treasury regulations or other administrative guidance thereunder); or
(v) any combination of items (i), (ii), (iii) and (iv).
(c) In addition, the Company shall not pay additional amounts with respect to any payment on any such Series B Preference Shares to any holder that is a fiduciary, partnership, limited liability company or other pass-through entity other than the sole beneficial owner of such Series B Preference Shares if such payment would be required by the laws of the Relevant Taxing Jurisdiction to be included in the income for tax purposes of a beneficiary or partner or settlor with respect to such fiduciary or a member of such partnership, limited liability company or other pass-through entity or a beneficial owner to the extent such beneficiary, partner or settlor would not have been entitled to such additional amounts had it been the holder of the Series B Preference Shares.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership shall make all payments on the Series 18 15 Preferred Units free and clear of and without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 15 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e2(C) (e) and Section 2(C)(f) to this Part XIX XVI of Schedule A, pay to the Series 18 15 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every net payment made to such holders, after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
a) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder 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 by reason of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;15
Appears in 1 contract
Sources: Limited Partnership Agreement
Payment of Additional Amounts. i. The Partnership (a) All payments made by the Co-Issuers under or with respect to the Notes or by a Guarantor under or with respect to its Note Guarantee shall make all payments on the Series 18 Preferred Units be made free and clear of and without withholding or deduction at source for, for or on account of, of any present or future taxes, fees, duties, assessments or governmental charges of whatever nature Taxes imposed or levied by or on behalf of any Taxing Authority in any jurisdiction in which a Co-Issuer or any Guarantor is organized or is otherwise resident for tax purposes or any jurisdiction from or through which payment is made (each a “Relevant Taxing Jurisdiction”), unless such taxes, fees, duties, assessments Co-Issuer or governmental charges are Guarantor is required to be withheld withhold or deducted deduct Taxes by law or by the official interpretation or administration thereof.
(ib) the laws (If a Co-Issuer or any regulations Guarantor is required to withhold or rulings promulgated thereunder) deduct any amount for or on account of any Taxes imposed by a Relevant Taxing Jurisdiction for from any payment made under or with respect to the Series 18 Preferred Units Notes or (ii) an official position regarding the application, administration, interpretation or enforcement Note Guarantee of any such laws, regulations or rulings (including a holding by a court of competent jurisdiction or by a taxing authority in any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredGuarantor, the Partnership shallCo-Issuers or the relevant Guarantor, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Aas applicable, shall pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every the net payment made to such holders, amount received by each Holder (including Additional Amounts) after such withholding or deduction (including any shall equal the amount the Holder would have received if such withholding Taxes had not been withheld or deduction from such Additional Amounts)deducted; provided, shall be equal to the amounts the Partnership would otherwise have been required to pay had however, that no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account ofshall payable with respect to any Tax:
a(1) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed imposed, payable or due but for the fact that existence of any present or former connection between the Holder (or the beneficial owner of, or person ultimately entitled to obtain an interest in, such holder was Notes) and the Relevant Taxing Jurisdiction (including being a resident, domiciliary citizen or resident or national of, or engaged in carrying on a business or maintained maintaining a permanent establishment in, or was being physically present in, the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise had some connection with the Relevant Taxing Jurisdiction Jurisdiction) other than by reason the mere holding of the mere ownership of, Notes or enforcement of rights under such Note or under a Guarantee or the receipt of payment underpayments in respect of such Note or a Guarantee;
(2) that would not have been imposed, payable or due but for the Series 18 Preferred Units failure to satisfy any certification, identification or any Series 18 Preferred Units presented for payment other reporting requirements whether imposed by statute, treaty, regulation or administrative practice; provided, however, that the Co-Issuers have delivered a request to the Holder to comply with such requirements at least 30 days prior to the date by which such compliance is required;
(3) that would not have been imposed, payable or due if the presentation of Notes (where presentation is required required) for payment) more than payment has occurred within 30 days after the Relevant Date date such payment was due and payable or was duly provided for, whichever is later;
(except 4) subject to Section 4.20(e), that is an estate, inheritance, gift, sales, excise, transfer or personal property tax, assessment or charge; or
(5) as a result of a combination of the foregoing clauses (1) through (4). In addition, Additional Amounts shall not be payable if the beneficial owner of, or Person ultimately entitled to obtain an interest in, such Notes had been the Holder and such beneficial owner would not be entitled to the payment of Additional Amounts by reason of clause (1), (2), (3), (4) or (5) above. In addition, Additional Amounts shall not be payable with respect to any Tax which is payable otherwise than by withholding from any payment under or in respect of principal of, or any interest or Additional Interest, if any, on, the Notes or any Guarantee.
(c) Whenever in this Indenture or the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, premium, if any, interest or Additional Interest, if any, or of any other amount payable under or with respect to any Note, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(d) Upon request, the Co-Issuers shall provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts.
(e) The Co-Issuers and the Guarantors shall pay any present or future stamp, court or documentary taxes, or any similar taxes, charges or levies which arise in any Relevant Taxing Jurisdiction from the execution, delivery or registration of the Notes, this Indenture or any other document or instrument referred to therein, or the receipt of any payments with respect to or enforcement of, the Notes or any Guarantee.
(f) Notwithstanding anything to the contrary contained in this Indenture, the Co-Issuers and the Guarantors may, to the extent required to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America from any payments under this Indenture; provided that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, foregoing shall not limit the date on which such payment first becomes due and payable, but if the full amount obligation of the moneys payable has not been received by Co-Issuers and the Paying Agent on or prior Guarantors to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;pay Additional Amounts as set forth in this Section 4.20.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership (a) All payments made by or on behalf of the Issuer under or with respect to a Note, or a Guarantor under or with respect to a Note Guarantee, shall make all payments on the Series 18 Preferred Units be made free and clear of and without withholding or deduction at source for, for or on account of, of any present or future taxestax, feesduty, dutieslevy, assessments impost, assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (hereinafter, “Taxes”) unless the Issuer or such Guarantor is required to withhold or deduct any such Taxes by law, including by the official interpretation or administration thereof by a relevant taxing authority. If any Taxes imposed or levied by or on behalf of the government of France or any Relevant other jurisdiction in which the Issuer or any Guarantor (or any successor Person) is organized or is a resident or does business for tax purposes or within or through which payment is made or any political subdivision or taxing authority or agency thereof or therein (any of the aforementioned being a “Taxing Jurisdiction”), unless such taxes, fees, duties, assessments or governmental charges are will at any time be required to be withheld or deducted by (i) the laws (from any payment made under or any regulations with respect to a Note or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units a Note Guarantee, or (ii) an official position regarding the application, administration, interpretation or enforcement of if a Holder actually pays any such laws, regulations Taxes where the Issuer or rulings (including Guarantor or applicable withholding agent has failed to withhold or deduct Taxes required to be withheld or deducted from any payment made under or with respect to a holding by Note or a court of competent jurisdiction or by a taxing authority in any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredNote Guarantee, the Partnership Issuer or the relevant Guarantor, as applicable, shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every the net payment made to amount received by the holder of such holders, Note (including Additional Amounts) after such withholding or deduction by the applicable withholding agent of such Taxes (including any such withholding or deduction from Taxes on such Additional Amounts), ) shall not be equal to less than the amounts the Partnership amount such holder would otherwise have received if such Taxes had not been required to pay had no such withholding be withheld or deduction been required.
ii. The Partnership shall deducted; provided, however, that notwithstanding the foregoing, Additional Amounts will not be required paid:
(1) to pay any the extent the Taxes giving rise to such Additional Amounts for or on account of:
a) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed imposed, deducted or withheld but for the fact that such holder was existence of any present or former connection between the Holder or beneficial owner of a residentNote (or between a fiduciary, domiciliary settlor, beneficiary, member or national shareholder of, or engaged in business or maintained a permanent establishment or was physically present inpossessor of power over, the Relevant Holder or beneficial owner of such Note, if the Holder or beneficial owner is an estate, nominee, trust, partnership or corporation) and the relevant Taxing Jurisdiction (other than the receipt of such payment or the acquisition, ownership, holding or disposition of, or the execution, delivery, registration or enforcement of, such Note or Note Guarantee);
(2) subject to subsection (e) of this Section 4.20, with respect to any estate, inheritance, gift, sales, transfer or similar tax;
(3) subject to subsection (e) of this Section 4.20, with respect to any Taxes payable otherwise than by deduction or withholding from payments under or with respect to such Note;
(4) to the extent such Taxes would not have been imposed, deducted or withheld if the Holder or beneficial owner of the Note or beneficial owner of any payment on such Note had (i) made a declaration of non-residence, or any political subdivision thereof other claim or otherwise had some filing for exemption, to which it is entitled or (ii) complied with (to the extent legally eligible to do so) any certification, identification, information, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the Relevant relevant Taxing Jurisdiction of such Holder or beneficial owner of such Note or any payment on such Note (provided that (x) such declaration of nonresidence or other than claim or filing for exemption or such compliance is required by reason the applicable law of the mere ownership Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of the imposition, deduction or withholding of, such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of nonresidence or receipt other claim or filing for exemption or such compliance is required under the applicable law of payment underthe Taxing Jurisdiction, the Series 18 Preferred Units relevant Holder at that time has been notified in writing by the Issuer, any Guarantor or any Series 18 Preferred Units other Person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption or such compliance is required to be made);
(5) to the extent such Taxes would not have been imposed, deducted or withheld if the beneficiary of the payment had presented the Note for payment (where presentation is required for payment) more than within 30 days after the Relevant Date date on which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such amounts if it had presented such units for payment on any day within such 30 30-day period);
(6) with respect to any payment under or with respect to a Note to any Holder that is a fiduciary or partnership or any person other than the sole beneficial owner of such payment or Note, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment or Note would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note; or
(7) any combination of items (1) through (6) above. The “Relevant Date” means, in foregoing provisions shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect of to any payment, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given successor Person to the Series 18 Holders;Issuer or a Guarantor.
Appears in 1 contract
Sources: Indenture (Crown Holdings Inc)
Payment of Additional Amounts. i. (a) The Partnership Company shall make pay any amounts due with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction or withholding for any and all payments on present and future withholding taxes, levies, imposts and charges (a “withholding tax”) imposed by or for the Series 18 Preferred Units free and clear account of and without the Cayman Islands, Switzerland or any other jurisdiction in which either the Company or a Guarantor is a resident for tax purposes or any political subdivision or taxing authority of such jurisdiction (the “Taxing Jurisdiction”), unless such withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied is required by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction)law. If a such deduction or withholding or deduction is at source is any time required, the Partnership shallCompany or such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX holder of Schedule Aa Security with any relevant administrative requirements), pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions in respect of principal amount, redemption price and interest (if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so that every the net payment made amounts paid to such holders, the holder or the Trustee after such deduction or withholding or deduction will equal the principal amount, redemption price and interest (including any such withholding or deduction from such Additional Amountsif any), shall be equal to on the amounts Securities. However, neither the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to Company nor any Guarantor will pay any Additional Amounts for or on account ofin the following instances:
a(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction other than the holding or ownership of the Security or the collection of principal amount, redemption price, repurchase price and interest (if any), in accordance with the terms of the Securities and this Indenture, or the enforcement of the Security or (ii) where presentation is required, the Security was presented more than 30 days after the date such payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;
(3) if any withholding tax is attributable to any tax, feelevy, dutyimpost or charge which is payable otherwise than by withholding from payment of principal amount, assessment or governmental charge of whatever nature that redemption price, repurchase price and interest (if any);
(4) if any withholding tax would not have been imposed but for the fact that failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the relevant tax authority of the holder or beneficial owner of the Security, if this compliance is required by statute or by regulation as a precondition to relief or exemption from such withholding tax;
(5) to the extent a holder of a Security is entitled to a refund or credit in such Taxing Jurisdiction of amounts required to be withheld by such Taxing Jurisdiction;
(6) if any withholding tax or deduction is required to be made pursuant to an agreement between Switzerland and another country or countries on final withholding taxes levied by Swiss paying agents in respect of persons resident in the other country on income of such person on any Securities booked or deposited with a Swiss paying agent (Abgeltungssteuer), and such holder was of a residentSecurity chooses not to provide the certification, domiciliary documentation or national ofother information that would eliminate such withholding or deduction;
(7) if any withholding tax or deduction is required to be made in respect of any tax, duty, assessment or other governmental charge imposed or withheld pursuant to Sections 1471 through 1474 of the Code, as of the date hereof (or any amended or successor version), current or future U.S. Treasury Regulations issued thereunder or any official interpretation thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or engaged any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into 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 implementation of such Sections of the Code; or
(8) any combination of the instances described in the preceding clauses.
(b) With respect to clause (5) above, in the absence of evidence satisfactory to us we may conclusively presume that a holder of a Security is entitled to a refund or credit of all amounts required to be withheld. We also will not pay any Additional Amounts to any holder who is a fiduciary or partnership or other than by reason the sole beneficial owner of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except Security to the extent that the holder a beneficiary or settlor with respect to such fiduciary, or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such amounts if it Additional Amounts had presented such units for payment on any day within such 30 day period). The “Relevant Date” meansbeneficiary, in respect of any paymentsettlor, member or beneficial owner been the date on which such payment first becomes due and payable, but if the full amount holder of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;Security.
Appears in 1 contract
Sources: Indenture (Transocean Ltd.)
Payment of Additional Amounts. i. The Partnership All payments of principal, premium and interest in respect of each Security shall make all payments on the Series 18 Preferred Units be made free and clear of of, and without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges or penalties or interest related thereto of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or on behalf of within Mexico or any Relevant Taxing Jurisdictionpolitical subdivision or taxing authority thereof or therein ("Mexican Taxes"), unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every net payment made to such holders, after such withholding or deduction (including is required by law or by regulation. In the event that any such withholding or deduction from in respect of principal, premium or interest is so required, the Issuer shall pay such additional amounts ("Additional Amounts), shall be equal to the ") as will result in receipt by each holder of any Security of such amounts the Partnership as would otherwise have been required received by such holder with respect to pay such Security had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any , except that no Additional Amounts shall be payable for or on account of:
a(1) any tax, fee, duty, assessment or other governmental charge imposed by reason of
(A) the existence of whatever nature that would not have been imposed but for the fact that any present or former connection between such holder 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 beneficial owner of such Security and Mexico (or any political subdivision or taxing authority thereof or otherwise had some connection with the Relevant Taxing Jurisdiction therein) other than by reason of merely holding such Security or the mere ownership receipt of, or enforcement of rights, under the Securities, or the receipt of payment underpayments in respect thereof, including, without limitation, such holder or the Series 18 Preferred Units beneficial owner of such Security being or any Series 18 Preferred Units presented for payment having been a national, domiciliary or resident thereof or being or having been present or engaged in a trade or business therein or having or having had a permanent establishment therein; or
(B) the presentation of such Security (where presentation is required for paymentrequired) more than 30 days after the Relevant Date (date on which the payment in respect of such Security became due and payable or provided for, whichever is later, except to the extent that the such holder would have been entitled to such amounts Additional Amounts if it had presented such units Security for payment on the last day of such period of 30 days;
(2) any day within estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(3) any tax, duty, assessment, fee or other governmental charge or increase thereof to the extent that such 30 day period). The “Relevant Date” meansamount would not have been imposed or increased but for the failure of such holder or the beneficial owner of a Security to comply with any applicable certification, documentation, information or other reporting requirement required by an applicable treaty, by law, or by regulation or administrative practice concerning the nationality, residence, identity or connection with the taxing jurisdiction of the holder or beneficial owner of such Security, provided, however, that the exclusion set forth in this clause (3) shall not apply in respect of any paymentcertification, identification, information, documentation or other reporting requirement if such requirement would be materially more onerous, in form, in procedure or in the substance of information disclosed, to the holder or beneficial owner of a Security than comparable information or other reporting requirements imposed under U.S. tax law, regulation and administrative practice (such as IRS Forms W-8BEN and W-9); or
(4) any combination of items (1), (2) and (3). Whenever there is mentioned in any context, the date payment of principal, premium or interest in respect of any Security or the net proceeds received on the sale or exchange of any Security, such mention shall be deemed to include the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to this Indenture. The Issuer will provide to the Trustee and Paying Agent documentation evidencing payment of withholding taxes within 30 days after payment thereof. Copies of such documentation shall be provided to holders requesting them. The Issuer will pay any present or future stamp, court or documentary taxes, or any other excise or property taxes, charges or similar levies which arise in any jurisdiction from the execution, delivery or registration of the Securities, except for any such payment first becomes due and payabletaxes, charges or similar levies imposed by any jurisdiction outside of Mexico (other than those resulting from, or required to be paid in connection with, the enforcement of the Securities following the occurrence of any Event of Default with respect to the Securities). Notwithstanding the foregoing, no service charge will be made for any registration of transfer or exchange of Securities, but if the full amount Issuer may require payment of the moneys a sum sufficient to cover any transfer tax or other similar governmental charge payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;in connection therewith.
Appears in 1 contract
Sources: Indenture (Vitro Sa De Cv)
Payment of Additional Amounts. i. The Partnership shall make all payments on the Series 18 Preferred Units free and clear of and without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every net payment made to such holders, after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
a) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder 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 by reason of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment (where presentation is required for payment) more than 30 At least 10 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which payment of principal and any premium or interest on the full amount of Notes is to be made, and at least 10 days prior to any subsequent such moneys having date if there has been so received and being available for payment to holders and notice to that effect shall have been duly given any change with respect to the Series 18 Holders;matters set forth in the Officer's Certificate described in this Section 4.14, the Company shall furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officer's Certificate instructing the Trustee and the Paying Agent whether the Company is obligated to pay Additional Amounts (as defined in Section 3 -45- 52 of the Initial Notes or Section 2 of the Exchange Notes) with respect to such payment of principal, or of any premium or interest on the Notes. If the Company will be obligated to pay Additional Amounts with respect to such payment, then such Officer's Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders and the Company will pay to the Trustee or the Paying Agent such Additional Amounts. The Company shall indemnify the Trustee and the Paying Agent for, and 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 Officer's Certificate furnished to them pursuant to this Section 4.14. Whenever in this Indenture there is mentioned, in any context, the payment of principal (and premium, if any), Offer Amount, interest or any other amount payable under or with respect to any Note such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section 4.14 and Section 3 of the Initial Notes (or Section 2 of the Exchange Notes) to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section 4.14 and Section 3 of the Initial Notes (or Section 2 of the Exchange Notes) and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made (if applicable).
Appears in 1 contract
Sources: Indenture (NTL Communications Corp)
Payment of Additional Amounts. i. The Partnership shall make all All payments on made by the Series 18 Preferred Units Issuer and the Guarantors, if any, under or with respect to the Securities and any Guarantees will be made free and clear of and without withholding or deduction at source for, for or on account of, of any present or future taxes, feesduties, dutieslevies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant jurisdiction in which the Issuer or any Guarantor is organized, engaged in business, resident for tax purposes or generally subject to tax on a net income basis or from or through which payment on the Securities is made by the Issuer, any Guarantor or any paying agent in its capacity as such, or any political subdivision or authority thereof or therein having power to tax (a "Taxing JurisdictionAuthority") and any interest, penalties and other liabilities with respect thereto (collectively "Taxes"), unless such taxesthe Issuer or any Guarantor, feesas the case may be, duties, assessments or governmental charges are is required to be withheld withhold or deducted deduct such Taxes by (i) law or by the laws (relevant Taxing Authority's interpretation or administration thereof. In the event that the Issuer or any regulations Guarantor is required to so withhold or rulings promulgated thereunder) of deduct any Relevant Taxing Jurisdiction amount for the Series 18 Preferred Units or (ii) an official position regarding the application, administration, interpretation or enforcement on account of any such lawsTaxes from any payment made under or with respect to the Securities or the Guarantees, regulations or rulings (including a holding by a court of competent jurisdiction or by a taxing authority in any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredas the case may be, the Partnership shallIssuer or such Guarantor, subject to as the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Acase may be, will pay to the Series 18 Holders such additional amounts (the “"Additional Amounts”") as distributions as may be necessary so that every the net payment made to such holders, amount (including Additional Amounts) received by each Holder of Securities after such withholding or deduction (including any will equal the amount that such withholding or deduction from Holder would have received if such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have Taxes had not been required to pay had be withheld or deducted; provided that upon the implementation of the Directive, the Issuer and the Guarantors shall ensure that a Paying Agent is maintained in a member state of the European Union that is not obliged to withhold or deduct Taxes pursuant to such Directive; provided further that no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for will be payable with respect to a payment made to a Holder or on account of:
a) any tax, fee, duty, assessment or governmental charge beneficial owner of whatever nature that would not have been imposed but for the fact that such holder 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 by reason of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except Securities to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;extent:
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership shall make Any and all payments on made by the Series 18 Preferred Units Company to the Holders, under or with respect to the Securities, will be made free and clear of and without withholding or deduction at source for, for or on account of, of any present or future taxestax, feesduty, dutieslevy, assessments impost, assessment or other governmental charges of whatever nature charge (including any interest or penalties with respect thereto) imposed or levied by or on behalf of Mexico or any Relevant Taxing Jurisdictionpolitical subdivision thereof or by any authority or agency therein or thereof having power to tax (hereinafter "Mexican Withholding Taxes"), unless the withholding or deduction of such taxes, fees, duties, assessments Mexican Withholding Taxes is required by law or governmental charges by the interpretation or administration thereof. In the event any Mexican Withholding taxes are required to be so withheld or deducted by the Company will (ia) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders such additional amounts (the “"Additional Amounts”") as distributions as may be necessary so that every net payment made to such holders, after such withholding making all required deductions or deduction withholdings (including any such withholding those applicable to additional sums payable under this provision) the net amount received by Holders or deduction from such Additional Amounts), shall other beneficial owners of the Securities will not be equal to less than the amounts the Partnership as would otherwise have been required to pay received by them had no such withholding or deduction been required.
ii, (b) deduct or withhold such Mexican Withholding Taxes and (c) remit the full amount so deducted or withheld to the relevant taxing or other authority. The Partnership shall not be required to pay any Notwithstanding the foregoing, no such Additional Amounts shall be payable for or on account of:
of (a) any tax, fee, duty, assessment or governmental charge of whatever nature that Mexican Withholding Taxes which would not have been imposed or levied on a Holder but for the fact that such holder was a resident, domiciliary existence of any present or national of, former connection between the Holder or engaged in business or maintained a permanent establishment or was physically present in, beneficial owner of the Relevant Taxing Jurisdiction Securities and Mexico or any political subdivision or territory or possession thereof or otherwise had some area subject to its jurisdiction, including, without limitation, such Holder or beneficial owner (i) being or having been a citizen or resident of Mexico, (ii) maintaining or having maintained an office, permanent establishment, fixed base or branch therein, or (iii) being or having been present or engaged in trade or business therein, except for a connection with the Relevant Taxing Jurisdiction other than by reason of solely arising from the mere ownership ofor, or receipt of payment under, such Securities or the Series 18 Preferred Units exercise of rights under such Securities or the Indenture (personally or through the Trustee); (b) any estate inheritance, gift or similar tax, assessment or other governmental charge; (c) any Mexican Withholding Taxes that are imposed or levied by reason of the failure by the Holder or beneficial owner of such Securities to comply with any certification, identification, information, documentation, declaration or other reporting requirement which is required or imposed by a statute, treaty, regulation, general rule or administrative practice as a precondition to exemption from, or reduction in the rate of, the imposition, withholding or deduction of any Mexican Withholding Taxes; provided that at least 60 days prior to (i) the first payment date with respect to which the Company shall apply this clause (c) and (ii) in the event of a change in such certification, identification, information, documentation, declaration or other reporting requirements, the first payment date subsequent to such change, the Company shall have notified the Trustee, in writing, that the Holders or beneficial owners of the Securities will be required to provide such certification, identification, information or documentation, declaration or other reporting; (d) any Mexican Withholding Taxes that are imposed or levied by reason of the failure by the Holder or beneficial owners of such Securities to timely comply (subject to the conditions set forth below) with a written request by or on behalf of the Company, to provide information, documentation or other evidence concerning the nationality, residence, identity, eligibility for benefits under a treaty for avoidance of double taxation to which Mexico is a party, which is in effect, present or former connection with Mexico or any Series 18 Preferred Units presented for political subdivision or territory or possession thereof or area subject to its jurisdiction, or of the Holder or beneficial owner of such Securities that is necessary from time to time to determine the appropriate rate of deduction or withholding of Mexican Withholding Taxes applicable to such Holder or beneficial owner; provided that at least 60 days prior to the first payment date with respect to which the Company shall apply this clause (d), the Company shall have notified the Trustee, in writing, that such Holders or beneficial owners of the Securities will be required to provide such information, documentation or other evidence; (e) the presentation of such Securities (where presentation is required required) for payment) payment on a date more than 30 days after the Relevant Date (date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later, except to the extent that the holder would Holder or the beneficial owner of such Securities should have been entitled to Additional Amounts in respect of such amounts if it had presented Mexican Withholding Taxes on presenting such units Securities for payment on any day within date during such 30 30-day period; or (f) any combination of items (a), (b), (c), (d) or (e) above. Notwithstanding the foregoing, the limitations on the Company's obligation to pay Additional Amounts set forth in clauses (c) and (d) of the preceding paragraph shall not apply if the provision of the certification, identification, information, documentation, declaration or other evidence described in such clauses (c) and (d) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Security (taking into account any relevant differences between United States and Mexican law, regulation or administrative practice) than comparable information or other applicable reporting requirements imposed or provided for under United States federal income tax law (including the United States-Mexico Income Tax Treaty), regulations (including proposed regulations) and administrative practice (such as IRS Forms 1001, W-8, W-8BEN and W-9). In addition, the limitations on the Company's obligation to pay Additional Amounts set forth in clauses (c) and (d) above of the preceding paragraph shall not apply if Section VI of Article 154 of the Mexican Income Tax Law is in effect , unless (a) the provision of the certification, identification, information, documentation, declaration or other evidence described in above referred clauses (c) and (d) is expressly required by statute, regulation, general rules or administrative practice in order to apply Section VI of Article 154 of the Mexican Income Tax Law, the Company cannot obtain such certification, identification, information, or satisfy any other reporting requirements, on its own through reasonable diligence and the Company otherwise would meet the requirements for application of Section VI of Article 154 of the Mexican Income Tax Law or (b) in the case of a Holder or beneficial owner of Securities that is a pension fund or other tax-exempt organization, such Holder or beneficial owner would be subject to Mexican Withholding Taxes at a rate that is lower than the rate resulting from the application of Section VI of Article 154 of the Mexican Income Tax Law if the information, documentation or other evidence required under above referred clauses (c) and (d) of the preceding paragraph were provided. In addition, clauses (c) and (d) of the preceding paragraph shall not be construed to require that a non-Mexican pension or retirement fund, a non-Mexican tax-exempt organization, a non-Mexican financial institution or any other Holder or beneficial owner of a Security obtains registration with the Ministry of Finance and Public Credit for the purpose of establishing eligibility of an exemption from or reduction of Mexican Withholding Taxes. Upon the Trustee's receipt of timely notification from the Company that the Holders or beneficial owners will be required to provide information or documentation, as described in clauses (c) and (d) above, the Trustee shall provide such notification to the Holders or beneficial owners, as the case may be. The “Relevant Date” meansCompany will, upon written request, provide the Trustee, the Holders and the Paying Agent with a duly certified or authenticated copy of an original receipt of the payment of Mexican Withholding Taxes which the Company has withheld or deducted in respect of any payments made under or with respect to the Securities. The Trustee shall, for a period of five years following the due date for each payment, maintain in its files each such certified copy received from the Company. If the Company is obligated to pay Additional Amounts with respect to any payment under or with respect to the Securities (other than Additional Amounts payable on the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by Indenture), the Paying Agent on or prior to such due dateCompany will, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given upon written request, deliver to the Series 18 Holders;Trustee an Officers' Certificate stating the fact that such Additional Amounts are payable and the amounts so payable. The Company shall pay any stamp, issue, registration, documentary or other similar taxes and other duties (including interest and penalties with respect thereto) imposed or levied by Mexico (or any political subdivision or taxing authority thereof or therein) in respect of the creation, issue and offering of the Securities. Except as specifically provided in the Security or this Indenture, the Company shall not be required to make any payment with respect to any tax, duty, assessment or other governmental charge of whatever nature imposed or levied by any government or any political subdivision or taxing authority thereof or therein.
Appears in 1 contract
Sources: Indenture (Durango Corp)
Payment of Additional Amounts. i. The Partnership shall make all payments on the Series 18 Preferred Units free and clear of and without If any deduction or withholding or deduction at source for, or on account of, for any present or future taxes, fees, duties, assessments or other governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws jurisdiction (or any regulations political subdivision or rulings promulgated thereundertaxing authority thereof or therein) in which the Guarantor is resident for tax purposes shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any Relevant Taxing Jurisdiction for amounts to be paid by the Series 18 Preferred Units or (ii) an official position regarding Guarantor under 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredGuarantee, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, Guarantor will pay to the Series 18 Holders each Holder of Outstanding Securities as additional interest, such additional amounts (the “Additional Amounts”) as distributions as may be necessary so in order that every the net payment made amounts paid to such holdersHolder who, with respect to any such tax, assessment or other governmental charge, is not resident in, or a citizen of, such jurisdiction, after such withholding deduction or deduction (including any such withholding or deduction from such Additional Amounts)withholding, shall be equal not less than the amount to which such Holder is entitled; provided, however, the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership Guarantor shall not be required to pay make any Additional Amounts payment of additional amounts for or on account of:
a(i) any Any tax, fee, duty, assessment or other governmental charge of whatever nature that which would not have been imposed but for (a) the fact that existence of any present or former connection between such holder was Holder (or between a residentfiduciary, domiciliary settlor, beneficiary, member or national ofshareholder of such Holder, if such Holder is an estate, trust, partnership, limited liability company or engaged in business or maintained a permanent establishment or was physically present in, corporation) and the Relevant Taxing Jurisdiction taxing jurisdiction or any political subdivision or territory or possession thereof or otherwise area subject to its jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or having had some connection with a permanent establishment therein or (b) the Relevant Taxing Jurisdiction other than by reason presentation of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment an Outstanding Security (where presentation is required required) for payment) payment on a date more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, x) the date on which such payment first becomes became due and payable, but if payable or (y) the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which payment thereof is duly provided for, whichever occurs later;
(ii) Any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(iii) Any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of (or in respect of) principal of, premium, if any, or any interest on, Outstanding Securities;
(iv) Any tax, assessment or other governmental charge that is imposed or withheld by reason of the full amount failure to comply by the Holder or the beneficial owner of the Outstanding Security with a request of the Guarantor addressed to the Holder (a) to provide information, documents or other evidence concerning the nationality, residence or identity of the Holder or such beneficial owner or (b) to make and deliver any declaration or other similar claim (other than a claim for refund of a tax, assessment or other governmental charge withheld by the Guarantor) or satisfy any information or reporting requirements, which, in the case of (a) or (b), is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such moneys having been so received tax, assessment or other governmental charge, provided that, in the case of (b), the Holder is legally entitled to deliver such declaration or similar claim; or
(v) Any combination of items (i), (ii), (iii) and being available for (iv) above; nor shall additional amounts be paid with respect to any payment of the principal of, or any premium or interest on, any Outstanding Security to any Holder who is a fiduciary or partnership or limited liability company or other than the sole beneficial owner of such payment to holders and notice the extent such payment would be required by the laws of any jurisdiction in which the Guarantor is resident for tax purposes (or any political subdivision or taxing authority thereof or therein) to that effect shall be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership, limited liability company or beneficial owner who would not have been duly given entitled to such additional amounts had it been the Series 18 Holders;Holder of such Outstanding Security.
Appears in 1 contract
Sources: Indenture (Hilfiger Tommy Corp)
Payment of Additional Amounts. i. (a) The Partnership shall Company will make all payments on the Series 18 Preferred Units B Preference Shares free and clear of and without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (ix) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units or (iiy) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including including, without limitation, a holding by a court of competent jurisdiction or by a taxing authority in any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shallCompany will, subject to the certain limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Adescribed below, pay to the holders of the Series 18 Holders B Preference Shares such additional amounts (the “Additional Amountsadditional amounts”) as distributions dividends as may be necessary so that every net payment made to such holderspayment, after such withholding or deduction (including any such withholding or deduction from such Additional Amountsadditional amounts), shall will be equal to the amounts the Partnership Company would otherwise have been required to pay had no such withholding or deduction been required.
ii. (b) The Partnership shall Company will not be required to pay any Additional Amounts additional amounts for or on account of:
a(i) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder 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 by reason of the mere ownership of, or receipt of payment under, the such Series 18 Preferred Units B Preference Shares or any Series 18 Preferred Units B Preference Shares presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units shares for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by the Paying Agent dividend disbursing agent on or prior to such due date, it means the first date on which which, the full amount of such moneys having been so received and being available for payment to holders and holders, notice to that effect shall have been duly given to the holders of the Series 18 HoldersB Preference Shares;
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership (a) All payments made by the Co-Issuers under or with respect to the Notes or by a Guarantor under or with respect to its Note Guarantee shall make all payments on the Series 18 Preferred Units be made free and clear of and without withholding or deduction at source for, for or on account of, of any present or future taxes, fees, duties, assessments or governmental charges of whatever nature Taxes imposed or levied by or on behalf of any Taxing Authority in any jurisdiction in which a Co-Issuer or any Guarantor is organized or is otherwise resident for tax purposes or any jurisdiction from or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless such taxes, fees, duties, assessments Co-Issuer or governmental charges are Guarantor is required to be withheld withhold or deducted deduct Taxes by law or by the official interpretation or administration thereof.
(ib) the laws (If a Co-Issuer or any regulations Guarantor is required to withhold or rulings promulgated thereunder) deduct any amount for or on account of any Taxes imposed by a Relevant Taxing Jurisdiction for from any payment made under or with respect to the Series 18 Preferred Units Notes or (ii) an official position regarding the application, administration, interpretation or enforcement Note Guarantee of any such laws, regulations or rulings (including a holding by a court of competent jurisdiction or by a taxing authority in any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredGuarantor, the Partnership shallCo-Issuers or the relevant Guarantor, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Aas applicable, shall pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every the net payment made to such holders, amount received by each Holder (including Additional Amounts) after such withholding or deduction (including any shall equal the amount the Holder would have received if such withholding Taxes had not been withheld or deduction from such Additional Amounts)deducted; provided, shall be equal to the amounts the Partnership would otherwise have been required to pay had however, that no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account ofshall payable with respect to any Tax:
a(1) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed imposed, payable or due but for the fact that existence of any present or former connection between the Holder (or the beneficial owner of, or person ultimately entitled to obtain an interest in, such holder was Notes) and the Relevant Taxing Jurisdiction (including being a resident, domiciliary citizen or resident or national of, or engaged in carrying on a business or maintained maintaining a permanent establishment in, or was being physically present in, the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise had some connection with the Relevant Taxing Jurisdiction Jurisdiction) other than by reason the mere holding of the mere ownership of, Notes or enforcement of rights under such Note or under a Guarantee or the receipt of payment underpayments in respect of such Note or a Guarantee;
(2) that would not have been imposed, payable or due but for the Series 18 Preferred Units failure to satisfy any certification, identification or any Series 18 Preferred Units presented for payment other reporting requirements whether imposed by statute, treaty, regulation or administrative practice; provided, however, that the Co-Issuers have delivered a request to the Holder to comply with such requirements at least 30 days prior to the date by which such compliance is required;
(3) that would not have been imposed, payable or due if the presentation of Notes (where presentation is required required) for payment) more than payment has occurred within 30 days after the Relevant Date date such payment was due and payable or was duly provided for, whichever is later;
(except 4) subject to Section 4.20(e), that is an estate, inheritance, gift, sales, excise, transfer or personal property tax, assessment or charge; or
(5) as a result of a combination of the foregoing clauses (1) through (4). In addition, Additional Amounts shall not be payable if the beneficial owner of, or person ultimately entitled to obtain an interest in, such Notes had been the Holder and such beneficial owner would not be entitled to the payment of Additional Amounts by reason of clause (1), (2), (3), (4) or (5) above. In addition, Additional Amounts shall not be payable with respect to any Tax which is payable otherwise than by withholding from any payment under, or in respect of the Notes or any Guarantee.
(c) Whenever in this Indenture or the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, premium, if any, interest or Additional Interest, if any, or of any other amount payable under or with respect to any Note, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(d) Upon request, the Co-Issuers shall provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts.
(e) The Co-Issuers and the Guarantors shall pay any present or future stamp, court or documentary taxes, or any similar taxes, charges or levies which arise in any Relevant Taxing Jurisdiction from the execution, delivery or registration of the Notes, this Indenture or any other document or instrument referred to therein, or the receipt of any payments with respect to or enforcement of, the Notes or any Guarantee.
(f) Notwithstanding anything to the contrary contained in this Indenture, the Co-Issuers and the Guarantors may, to the extent required to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America from any payments under this Indenture; provided that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, foregoing shall not limit the date on which such payment first becomes due and payable, but if the full amount obligation of the moneys payable has not been received by Co-Issuers and the Paying Agent on or prior Guarantors to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;pay Additional Amounts as set forth in this Section 4.20.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership shall make all Unless otherwise required by Bermuda law, neither the Company nor any Guarantor will deduct or withhold from payments on made with respect to the Series 18 Preferred Units free Securities and clear of and without withholding or deduction at source forthe Guarantees, or if any, on account of, of any present or future taxes, fees, duties, assessments Taxes. In the event that either the Company or governmental charges of whatever nature imposed any Guarantor is required to withhold or levied by or deduct on behalf account of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments Taxes due from any payment made under or governmental charges are required with respect to be withheld or deducted by (i) the laws (Securities or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for Guarantees, as the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredcase may be, the Partnership shallCompany or such Guarantor, subject to as the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Acase may be, will pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every the net amount received by each Holder of Securities will equal the amount that the Holder would have received if the Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment made to a Holder to the extent: (a) that any Taxes would not have been so imposed but for the existence of any present or former connection between the Holder and Bermuda, other than the mere receipt of the payment, acquisition, ownership or disposition of such holdersSecurities or the exercise or enforcement of rights under the Securities, after such the Guarantees, if any, or this Indenture; (b) of any estate, inheritance, gift, sales, transfer or personal property Taxes imposed with respect to the Securities or any other Taxes payable other than by withholding or deduction deduction, except as described below or as otherwise provided in this Indenture; (including c) that any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
a) any tax, fee, duty, assessment or governmental charge of whatever nature that Taxes would not have been imposed but for the fact that such holder 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 by reason presentation of the mere ownership ofSecurities, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment (where presentation is required required, for payment) payment on a date more than 30 days after the Relevant Date (date on which the payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the holder beneficiary or Holder thereof would have been entitled to such amounts if it Additional Amounts had the Securities been presented such units for payment on any day within date during such 30 30-day period; (d) that the Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar claim for exemption, if: (i) the making of the declaration or claim is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant taxing authority as a precondition to an exemption from, or reduction in, the relevant Taxes; and (ii) at least 60 days prior to the first payment with respect to which the Company or such Guarantor shall apply this clause (d), the Company or such Guarantor shall have notified all Holders of the Securities in writing that they shall be required to provide this declaration or claim; (e) any Taxes imposed under Sections 1471 through 1474 of the Code, any successor law or regulation implementing or complying with, or introduced in order to conform to, such sections or any intergovernmental agreement or any agreement entered into pursuant to section 1471(b)(1) of the Code; (f) any Taxes imposed on overall net income or any branch profits Taxes; (g) that a beneficiary or settlor with respect to a fiduciary, a member of a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the holder of a Note in the case of a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment; or (h) any combination of the foregoing. The “Relevant Date” means, Company and such Guarantor shall also (w) withhold or deduct such Taxes as required; (x) remit the full amount of Taxes deducted or withheld to the relevant taxing authority in respect accordance with all applicable laws; (y) use reasonable efforts to obtain from each relevant taxing authority imposing the Taxes certified copies of tax receipts evidencing the payment of any paymentTaxes deducted or withheld; and (z) upon request, make available to the Holders of the Securities, within 60 days after the date the payment of any Taxes deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company or such Guarantor and, notwithstanding the Company’s or such Guarantor’s efforts to obtain the receipts, if the same are not obtainable, other evidence of such payments. In addition, the Company or any Guarantor will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and additional amounts with respect thereto, payable in Bermuda or the United States, or any political subdivision or taxing authority of or in the foregoing with respect to the creation, issue, offering, enforcement, redemption or retirement of the Securities or Guarantees. At least 30 days prior to each date on which such any payment first becomes under or with respect to the Securities is due and payable, but if the full amount Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment, the Company (or in respect of the moneys Guarantees, such Guarantor) shall deliver to the Trustee and the Securities Administrator an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amounts so payable has not been received by and will set forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the Holders on the payment date. Whenever in this Indenture there is mentioned, in any context, the payment of principal of and premium, if any, Additional Amounts, if any, or interest (including defaulted interest), if any, or any other amount payable on or prior with respect to any of the Securities, such due date, it means mention shall be deemed to include mention of the first date on which the full amount payment of such moneys having been so received and being available Additional Amounts provided for payment to holders and notice to that effect shall have been duly given in this Section 3.07 to the Series 18 Holders;extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section 3.07 and express mention of the payment of Additional Amounts in those provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made (if applicable).
Appears in 1 contract
Sources: Indenture (Nabors Industries Inc)
Payment of Additional Amounts. i. (a) The Partnership Company shall make pay any amounts due with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction or withholding for any and all payments on present and future withholding taxes, levies, imposts and charges (a “withholding tax”) imposed by or for the Series 18 Preferred Units free and clear account of and without withholding or deduction at source forthe Cayman Islands, or on account ofSwitzerland, any present other jurisdiction in which either the Company or future taxesa Guarantor is a resident for tax purposes, fees, duties, assessments any jurisdiction from or governmental charges of whatever nature imposed or levied through which payment is made by or on behalf of the Company or any Relevant Guarantor (including, without limitation, the Paying Agent) or any political subdivision or taxing authority of any such jurisdiction (the “Taxing Jurisdiction”), unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction is required by law. If such deduction or withholding is at source is any time required, the Partnership shallCompany or such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX holder of Schedule Aa Security with any relevant administrative requirements), pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions in respect of principal amount, redemption price and interest (if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so that every the net payment made amounts paid to such holders, the holder or the Trustee after such deduction or withholding or deduction will equal the principal amount, redemption price and interest (including any such withholding or deduction from such Additional Amountsif any), shall be equal to on the amounts Securities. However, neither the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to Company nor any Guarantor will pay any Additional Amounts for or on account ofin the following instances:
a(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction other than the holding or ownership of the Security or the collection of principal amount, redemption price, repurchase price and interest (if any), in accordance with the terms of the Securities and this Indenture, or the enforcement of the Security or (ii) where presentation is required, the Security was presented more than 30 days after the date such payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;
(3) if any withholding tax is attributable to any tax, feelevy, dutyimpost or charge which is payable otherwise than by withholding from payment of principal amount, assessment or governmental charge of whatever nature that redemption price, repurchase price and interest (if any);
(4) if any withholding tax would not have been imposed but for the fact that such failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the relevant tax authority of the holder was a residentor beneficial owner of the Security, domiciliary or national ofincluding U.S. Internal Revenue Service Forms W-8BEN, W-8BEN-E, W-9, or engaged in business such other U.S. tax forms as are necessary to support application of the “portfolio interest” exemption under Section 871(h) or maintained Section 881(c) of the Code, if (i) this compliance is required by statute or by regulation as a permanent establishment precondition to relief or was physically present inexemption from such withholding tax; (ii) the holder (including any intermediary or other applicable person) or beneficial owner of the Security is legally eligible to comply with such certification, information, documentation or other reporting requirements; and (iii) at least 30 days prior to the first payment date with respect to which the Company or such Guarantor shall apply this clause (4) with respect to such withholding tax, the Relevant Company or such Guarantor shall have notified all Holders in writing that any holders (including any intermediary or other applicable person) or any beneficial owners of the Securities shall be required to provide such certification, information, documentation or other reporting requirements;
(5) to the extent a holder of a Security is entitled to a refund or credit in such Taxing Jurisdiction of amounts required to be withheld by such Taxing Jurisdiction;
(6) if any withholding is required to be made pursuant to laws enacted by Switzerland providing for the taxation of payments according to principles similar to those laid down in the draft legislation of the Swiss Federal Council of December 17, 2014, or otherwise changing the Swiss federal withholding tax system from an issuer-based system to a paying-agent-based system pursuant to which a person other than the issuer is required to withhold tax on any interest payments;
(7) if any withholding tax or deduction is required to be made in respect of any tax, duty, assessment or other governmental charge imposed or withheld pursuant to Sections 1471 through 1474 of the Code, as of the date hereof (or any political subdivision thereof amended or otherwise had some successor version), current or future U.S. Treasury Regulations issued thereunder or any official interpretation thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the Relevant Taxing Jurisdiction implementation of such Sections of the Code; or
(8) any combination of the instances described in the preceding clauses.
(b) With respect to clause (a)(5) above, in the absence of evidence satisfactory to the Company or the applicable Guarantor, it may conclusively presume that a holder of a Security is entitled to a refund or credit of all amounts required to be withheld. The Company or the applicable Guarantor also will not pay any Additional Amounts to any holder who is a fiduciary or partnership or other than by reason the sole beneficial owner of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except Security to the extent that the holder a beneficiary or settlor with respect to such fiduciary, or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such amounts if it Additional Amounts had presented such units for payment on any day within such 30 day period). The “Relevant Date” meansbeneficiary, settlor, member or beneficial owner been the holder of the Security.
(c) Whenever in this Indenture or the Securities there is mentioned, in respect of any paymentcontext, the date on which such payment first becomes due and payable, but if of amounts based upon the full principal amount of the moneys Securities or of principal, interest or any other amount payable has not been received by under, or with respect to, any of the Paying Agent on Securities or prior any Security Guarantee, such mention shall be deemed to such due date, it means include mention of the first date on which the full amount payment of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given Additional Amounts to the Series 18 Holders;extent that, in such context, Additional Amounts are, were or would be payable in respect thereof, after giving effect to Section 13.01(a)(1) through (8).
Appears in 1 contract
Sources: Indenture (Transocean Ltd.)
Payment of Additional Amounts. i. The Partnership (a) All payments in respect of the Notes by the Company, and in respect of the Guarantee, by each Guarantor, shall make all payments on the Series 18 Preferred Units be made free and clear of of, and without withholding or deduction at source for, for or on account of, of any present or future taxes, fees, duties, assessments or other governmental charges charges, unless the withholding or deduction of whatever nature such taxes is required by law. In the event such taxes are imposed or levied by or on behalf of the Netherlands or any other jurisdiction in which the Company is organized, resident or carrying on business for tax purposes (or if a Guarantor is obligated to deduct any withholding taxes imposed or levied by or on behalf of the Netherlands or any other jurisdiction in which the Guarantor is organized, resident or carrying on business for tax purposes from payments made under a Guarantee), or any political subdivision thereof (a “Relevant Taxing Jurisdiction”), or by any taxing authority of a Relevant Jurisdiction, unless such taxesthe Company shall (or, feeswith respect to a Guarantee, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdictioneach Guarantor shall). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Abelow, pay to Holders of the Series 18 Holders such Notes additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every net payment made to such holdersof interest, after such withholding premium upon redemption of the Notes or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal principal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership Holders shall not be required to less than the amount provided for in the Notes.
(b) The Company, and each Guarantor, shall not pay any Additional Amounts to any Holder for or solely on account ofof any of the following:
a(i) any present or future taxes, duties, assessments or other governmental charges that would not have been imposed but for any present or former connection between the Holder (or a fiduciary, settlor, beneficiary, member or shareholder of the Holder) and the Relevant Jurisdiction (other than the mere receipt of a payment or the ownership or holding of a Note);
(ii) any estate, inheritance, capital gains, excise, personal property tax, feesales, dutytransfer, gift or similar tax, assessment or other governmental charge of whatever nature imposed with respect to the Notes;
(iii) any taxes, duties, assessments or other governmental charges that would not have been imposed but for the fact that such holder was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, failure of the Relevant Taxing Jurisdiction Holder or any political subdivision thereof other Person to comply with any certification, identification or otherwise had some other reporting requirement concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, for tax purposes, of the Holder or any beneficial owner of the Note if compliance is required by law, regulation or by an applicable income tax treaty to which the Relevant Jurisdiction is a party, as a precondition to exemption from, or reduction in the rate of, the tax, assessment or other governmental charge (including withholding taxes payable on interest payments under the Notes) and the Company has given the Holders at least 30 days’ notice that Holders will be required to provide such certification, identification or information;
(iv) any tax, duty, assessment or other governmental charge payable otherwise than by reason deduction or withholding from payments on or in respect of the mere ownership ofNotes;
(v) any present or future taxes, duties, assessments or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units other governmental charges with respect to a Note presented for payment (payment, where presentation is required for payment) required, more than 30 days after the Relevant Date (date on which the payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later, except to the extent that the holder Holder of such Note would have been entitled to such amounts if it had presented Additional Amounts on presenting such units Note for payment on any day within date during such 30 30-day period;
(vi) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of the principal of, or premium or interest on any Note, if such tax, assessment or other governmental charge results from the presentation of any Note for payment and the payment can be made without such withholding or deduction by the presentation of the Note for payment by at least one other reasonably available paying agent of the Company;
(vii) any payment on the Note to a Holder that is a fiduciary, a partnership, a limited liability company or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership, an interest holder in such a limited liability company or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note;
(viii) any tax, assessment or other governmental charge required pursuant to sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (or successor provisions). , any current or future regulations, rules, practices or agreements entered into pursuant thereto, official interpretations thereof or any law implementing an intergovernmental approach thereto;
(ix) any tax required to be withheld or deducted pursuant to the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021)
(x) in the case of any combination of the items listed above.
(c) The “Relevant Date” means, Company shall provide the Trustee with customary and satisfactory documentation evidencing the payment of taxes in respect of which the Company has paid any paymentAdditional Amount. Copies of such documentation shall be reasonably available to the Holders of the Notes or the relevant paying agent upon written request.
(d) Any reference in this Indenture or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by us will be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this section.
(e) In the event of any merger or other transaction involving the Company described and permitted under Section 4.1, all references to the Netherlands, the date on which such payment first becomes due and payable, but if the full amount laws or regulations of the moneys payable has not been received by Netherlands, and the Paying Agent on political subdivisions or prior taxing authorities of the Netherlands under this Section 3.11 and under Article IV and Section 5(b) of Exhibit A will be deemed to such due datealso include the jurisdiction of incorporation or tax residence of the Issuer Surviving Entity, it means if different from the first date on which the full amount Netherlands, and any political subdivision therein or thereof, law or regulations, and any taxing authority of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;other jurisdiction or any political subdivision therein or thereof, respectively.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership shall make Unless otherwise specified as contemplated by Section 3.01, with respect to Debt Securities, all payments amounts of principal of (and premium, if any, on) and interest on any such Debt Securities will be paid by the Series 18 Preferred Units free and clear of and Company, without deduction or withholding or deduction at source for, or on account of, any and all present or and future income, stamp and other taxes, levies, imposts, duties, charges, fees, dutiesdeductions or withholdings now or hereafter imposed, assessments levied, collected, withheld or governmental charges of whatever nature imposed or levied assessed by or on behalf of the United Kingdom or any Relevant political subdivision or any taxing authority thereof or therein having the power to tax (the “Taxing Jurisdiction”), unless such deduction or withholding is required by law. If deduction or withholding of any such taxes, levies, imposts, duties, charges, fees, deductions or withholdings shall at any time be required by the Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, Company will pay to the Series 18 Holders such additional amounts of, or in respect of, the principal amount of (the and premium, if any, on) and interest on such Debt Securities (“Additional Amounts”) as distributions as may be necessary so in order that every the net payment made amounts paid to the Holders of such holdersDebt Securities, after such deduction or withholding, shall equal the respective amounts of principal, premium and interest, which would have been payable in respect of such Debt Securities had no such deduction or withholding been required, provided that the foregoing will not apply to any such tax, levy, impost, duty, charge, fee, deduction or withholding which would not have been payable or due but for the fact that (i) the Holder of the Debt Security or the owner of a beneficial interest therein is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or physically present in, the Taxing Jurisdiction or otherwise has some connection or former connection with the Taxing Jurisdiction other than the holding or ownership of a Debt Security, or the collection of any payment of (or in respect of) principal of (premium, if any, on) and interest on or the enforcement of, any Debt Security, (ii) the relevant Debt Security or Coupon or other means of payment of interest in respect of Debt Securities is presented for payment in the United Kingdom or (iii) the relevant Debt Security or Coupon or other means of payment of interest in respect of Debt Securities is presented for payment more than 30 days after the date payment became due or was provided for, whichever is later, except to the extent that the Holder would have been entitled to such Additional Amount on presenting the same for payment at the close of such 30 day period (iv) such tax, levy, impost, duty, charge, fee, deduction or withholding is imposed on any interest to an individual and is required to be made pursuant to any European Union directive on the taxation of savings income relating to the proposal for a directive on the taxation of savings income published by the ECOFIN Council on December 13, 2001 or otherwise implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000, or any law implementing or complying with, or introduced in order to conform to, such a directive; (v) presentation for payment of the relevant Debt Securities was made to a paying agent who was required to make (or pass through) such deduction or withholding and presentation for payment could have been made to a paying agent who was not required to make (or pass through) such deduction or withholding; (vi) there was a failure to comply by the Holder or the beneficial owner of the Debt Securities or the beneficial owner of any payment on such Debt Securities with a request of the Company addressed to the Holder or the beneficial owner, including a request of the Company related to a claim for relief under any applicable double tax treaty (a) to provide information concerning the nationality, residence, identity or connection with a Taxing Jurisdiction of the Holder or the beneficial owner or (b) to make any declaration or other similar claim to satisfy any information or reporting requirement, if the information or declaration is required or imposed by a statute, treaty, regulation, ruling or administrative practice of the Taxing Jurisdiction as a precondition to exemption from withholding or deduction of all or part of the tax, duty, assessment or other governmental charge; (including vii) such tax, levy, impost, duty, charge, fee, deduction or withholding is imposed in respect of any estate, inheritance, gift, sale, transfer, personal property, wealth or similar tax, duty, assessment or other governmental charge; or (viii) such tax, levy, impost, duty, charge, fee, deduction or withholding is imposed in respect of any combination of the above items. For the avoidance of doubt, all payments in respect of the Debt Securities will be made subject to any withholding or deduction from such Additional Amounts)required pursuant to FATCA, shall be equal to and the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership Issuer shall not be required to pay any Additional Amounts for or on account of:
a) of any taxsuch deduction or withholding required pursuant to FATCA. Whenever in this Indenture there is mentioned, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present inany context, the Relevant Taxing Jurisdiction payment of any principal of (and premium, if any, on) or interest on any political subdivision thereof Debt Security of any series or otherwise had some connection with the Relevant Taxing Jurisdiction other than by reason payment of any related Coupon or the net proceeds received on the sale or exchange of any Debt Security of any series, such mention shall be deemed to include mention of the mere ownership of, or receipt payment of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented Additional Amounts provided for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except in this Section to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” meansthat, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of any paymentthis Section, the date on which such payment first becomes due and payable, but if the full amount express mention of the moneys payable has payment of Additional Amounts (if applicable) in any provisions hereof shall not been received by the Paying Agent on or prior to be construed as excluding Additional Amounts in those provisions hereof where such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;express mention is not made.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership (a) All payments made on all Securities and, with respect to any series of Securities to which the provisions of Article Fifteen shall make all payments on apply, the Series 18 Preferred Units Guarantee by the Company, the Guarantor, or a paying agent, as the case may be, shall be made free and clear of and without withholding or deduction at source for, for or on account of, of any present or future taxesincome, feesstamp or other tax, dutiesduty, assessments levy, impost, assessment or other governmental charges charge of whatever a similar nature imposed (collectively, “Taxes”), unless the Company, the Guarantor or a paying agent, as applicable is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof. If the Company, the Guarantor or a paying agent, as applicable, is required to withhold or deduct any amount for or on account of Taxes from any payment made in respect of the Securities or, with respect to any series of Securities to which provisions of Article Fifteen shall apply, the Guarantee levied by or on behalf of any a Relevant Taxing Jurisdiction, unless such taxesthe Company or the Guarantor, feesas applicable, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, shall pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so such that every the net payment made to amount received by each Holder (including such holdersAdditional Amounts), after such withholding or deduction (including any such withholding or deduction from such Additional Amounts)deduction, shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any less than the amount such Holder would have received if the Taxes had not been withheld or deducted; provided that no Additional Amounts for or on account ofwill be payable with respect to Taxes:
a(1) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that existence of any present or former connection between such holder was Holder or beneficial owner of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (or between a residentfiduciary, domiciliary settlor, beneficiary, member or national shareholder of, or possessor of a power over, such Holder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership or corporation), and such Relevant Taxing Jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or treated as a resident thereof or domiciled thereof or a national thereof or being or having been present or engaged in trade or business therein or maintained having or having had a permanent establishment therein;
(2) that are estate, inheritance, gift, sales, value added, transfer, personal property, wealth or was physically present similar taxes, duties, assessments or other governmental charges;
(3) payable other than by withholding from payments of principal of and premium, if any, or interest, if any, on the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee;
(4) that would not have been imposed but for the failure of the applicable recipient of such payment (or the beneficial owner of the applicable Security) to comply with any certification, identification, information, documentation or other reporting requirement to the extent:
(i) such compliance is required by applicable law or administrative practice or an applicable treaty as a precondition to exemption from, or reduction in, the Relevant Taxing Jurisdiction rate of deduction or withholding of such Taxes; and
(ii) at least thirty (30) days before the first payment date with respect to which such Additional Amounts or Taxes shall be payable, the Company or the Guarantor, as the case may be, shall have notified such recipient in writing that such recipient shall be required to comply with such requirement;
(5) that would not have been imposed but for the presentation of a Security or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (where presentation is required) for payment on a date more than thirty (30) days after the date on which such payment became due and payable or the date on which payment thereof was duly provided for, whichever occurred later;
(6) that are imposed or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), as of the issue date of the Securities (or any amended or successor version of such sections), any regulations promulgated thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement with respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code (any such taxes, “FATCA Taxes”), and any amounts to be paid on Securities by or on behalf of the Company will be paid net of any FATCA Taxes imposed or required pursuant thereto;
(7) that would not have been imposed if presentation for payment of the relevant Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (where presentation is required) had been made to a paying agent other than the paying agent to which the presentation was made;
(8) in the case of U.S. dollar-denominated Securities issued by the Company, any taxes imposed by the United States or any political subdivision thereof or otherwise had some connection tax authority therein, including any U.S. withholding and backup withholding taxes; or
(9) any combination of the foregoing clauses (1) through (8); nor shall Additional Amounts be paid with respect to any payment of principal of or premium, if any, or interest, if any, on any Securities or, with respect to any series of Securities to which the Relevant Taxing Jurisdiction provisions of Article Fifteen shall apply, the Guarantee, to any such Holder or beneficial owner who is a fiduciary or a partnership or a beneficial owner who is other than by reason the sole beneficial owner of the mere ownership of, or receipt of such payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except to the extent that the holder a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such Additional Amounts had it been the Holder of the Security. For the avoidance of doubt, no additional amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, shall be payable in respect of any paymentTaxes imposed by any jurisdiction other than a Relevant Taxing Jurisdiction.
(b) If the Company or the Guarantor becomes aware that it shall be obligated to pay Additional Amounts pursuant to this Section 4.05 with respect to any payment under or with respect to the Securities of such series or the Guarantee, the Company or the Guarantor, as the case may be, shall deliver to the Trustee on a date that is at least thirty (30) days prior to the date of that payment (unless the obligation to pay such Additional Amounts arises after the 30th day prior to that payment date, in which case the Company or the Guarantor, shall notify the Trustee promptly thereafter) an Officer’s Certificate of the Company or the Guarantor as the case may be, stating the fact that such Additional Amounts shall be payable pursuant to this Section 4.05 and the amount estimated to be so payable. Such Officer’s Certificate must also set forth any other information reasonably necessary to enable the paying agents to pay such Additional Amounts to Holders on which the relevant payment date. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Company or the Guarantor, as the case may be, shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment first becomes due of Additional Amounts.
(c) Each of the Company, the Guarantor, or the applicable paying agent, as the case may be, shall make all withholdings and payable, but if deductions required by law of it and shall remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law with respect to payments in respect of the moneys payable has Securities or Guarantees, as the case may be. Upon request, the Company or the Guarantor, as the case may be, shall provide to the Trustee an official receipt or, if official receipts are not been received obtainable, other documentation reasonably satisfactory to the Trustee evidencing the payment of any Taxes so deducted or withheld. Upon request, copies of those receipts or other documentation, as the case may be, shall be made available by the Paying Agent Trustee to the Holders of such Securities.
(d) All references in this Indenture, other than in Articles Twelve or Thirteen, to the payment of the principal of or premium, if any, or interest, if any, on or prior the net proceeds received on the sale or exchange of, any Securities or as applicable, with respect to such due datethe Guarantee, it means shall be deemed to include Additional Amounts to the first date on extent that, in that context, Additional Amounts are, were or would be payable.
(e) The obligations of the Company and, with respect to any series of Securities to which the full amount provisions of Article Fifteen shall apply, the Guarantor, to pay Additional Amounts if and when due shall survive the termination of this Indenture and the payment of all other amounts in respect of the Securities and any transfer by a Holder or beneficial owner of its Securities of such moneys having been so received series and being available for payment shall apply mutatis mutandis to holders and notice to that effect shall have been duly given any jurisdiction in which any successor Person to the Series 18 Holders;Company, the Guarantor, or the applicable paying agent, as the case may be, is incorporated or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Guarantees and any department or political subdivision thereof or therein.
Appears in 1 contract
Sources: Indenture (Accenture PLC)
Payment of Additional Amounts. i. (a) The Partnership Company shall make pay any amounts due with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction or withholding for any and all payments on present and future withholding taxes, levies, imposts and charges (a “withholding tax”) imposed by or for the Series 18 Preferred Units free and clear account of and without the Cayman Islands, Switzerland or any other jurisdiction in which either the Company or a Guarantor is a resident for tax purposes or any political subdivision or taxing authority of such jurisdiction (the “Taxing Jurisdiction”), unless such withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied is required by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction)law. If a such deduction or withholding or deduction is at source is any time required, the Partnership shallCompany or such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX holder of Schedule Aa Security with any relevant administrative requirements), pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions in respect of principal amount, redemption price and interest (if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so that every the net payment made amounts paid to such holders, the holder or the Trustee after such deduction or withholding or deduction will equal the principal amount, redemption price and interest (including any such withholding or deduction from such Additional Amountsif any), shall be equal to on the amounts Securities. However, neither the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to Company nor any Guarantor will pay any Additional Amounts for or on account ofin the following instances:
a(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction other than the holding or ownership of the Security or the collection of principal amount, redemption price, repurchase price and interest (if any), in accordance with the terms of the Securities and this Indenture, or the enforcement of the Security or (ii) where presentation is required, the Security was presented more than 30 days after the date such payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;
(3) if any withholding tax is attributable to any tax, feelevy, dutyimpost or charge which is payable otherwise than by withholding from payment of principal amount, assessment or governmental charge of whatever nature that redemption price, repurchase price and interest (if any);
(4) if any withholding tax would not have been imposed but for the fact that failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the relevant tax authority of the holder or beneficial owner of the Security, if this compliance is required by statute or by regulation as a precondition to relief or exemption from such withholding tax;
(5) to the extent a holder of a Security is entitled to a refund or credit in such Taxing Jurisdiction of amounts required to be withheld by such Taxing Jurisdiction;
(6) if any withholding or deduction is required to be made pursuant to any agreements between the European Community and other countries or territories providing for measures equivalent to those laid down in the Council Directive 2003/48/EC, including, but not limited to, the agreement between the European Union and Switzerland of October 26, 2004, or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, such agreements;
(7) if any withholding is required to be made pursuant to laws enacted by Switzerland providing for the taxation of payments according to principles similar to those laid down in the draft legislation of the Swiss Federal Council of December 17, 2014, or otherwise changing the Swiss federal withholding tax system from an issuer-based system to a paying‑agent‑based system pursuant to which a person other than the issuer is required to withhold tax on any interest payments;
(8) if any withholding tax or deduction is required to be made pursuant to an agreement between Switzerland and another country or countries on final withholding taxes levied by Swiss paying agents in respect of persons resident in the other country on income of such person on any Securities booked or deposited with a Swiss paying agent (Abgeltungssteuer), and such holder was of a residentSecurity chooses not to provide the certification, domiciliary documentation or national ofother information that would eliminate such withholding or deduction;
(9) if any withholding tax or deduction is required to be made in respect of any tax, duty, assessment or other governmental charge imposed or withheld pursuant to Sections 1471 through 1474 of the Code, as of the date hereof (or any amended or successor version), current or future U.S. Treasury Regulations issued thereunder or any official interpretation thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or engaged any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into 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 implementation of such Sections of the Code; or
(10) any combination of the instances described in the preceding clauses.
(b) With respect to clause (a)(5) above, in the absence of evidence satisfactory to the Company or the applicable Guarantor, it may conclusively presume that a holder of a Security is entitled to a refund or credit of all amounts required to be withheld. The Company or the applicable Guarantor also will not pay any Additional Amounts to any holder who is a fiduciary or partnership or other than by reason the sole beneficial owner of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except Security to the extent that the holder a beneficiary or settlor with respect to such fiduciary, or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such amounts if it Additional Amounts had presented such units for payment on any day within such 30 day period). The “Relevant Date” meansbeneficiary, in respect of any paymentsettlor, member or beneficial owner been the date on which such payment first becomes due and payable, but if the full amount holder of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;Security.
Appears in 1 contract
Sources: Indenture (Transocean Ltd.)
Payment of Additional Amounts. i. The Partnership 10.7.1 All payments in respect of the Securities shall make all payments on the Series 18 Preferred Units free and clear of and be made without withholding or deduction at source for, or on account of, for any present or future taxes, fees, duties, assessments or other governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or on behalf of Brazil or any Relevant Taxing JurisdictionSuccessor Jurisdiction or any authority therein or thereof having power to tax (“Foreign Taxes”), unless except to the extent that such taxes, fees, duties, assessments or governmental charges Foreign Taxes are required by Brazil, such Successor Jurisdiction or any such authority to be withheld or deducted by (i) deducted. In the laws (or any regulations or rulings promulgated thereunder) event of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredfor any Foreign Taxes, the Partnership shallCompany shall make such deduction or withholding, subject make payment of the amount so withheld to the limitations appropriate governmental authority and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be are necessary so to ensure that every the net payment made to amounts received by the Holders of Securities after such holderswithholding or deduction equals the respective amounts of principal, after premium and interest which would have been receivable in respect of such Securities had no such withholding or deduction (including for any Foreign Taxes payable in respect of Additional Amounts) been required, except that no such Additional Amounts shall be payable with respect to any payment on a Security:
(i) to, or to a third party on behalf of, a Holder who is liable for any such withholding taxes, duties, assessments or deduction from other governmental charges in respect of such Additional Amounts)Security by reason of (A) a connection between the Holder and Brazil or such Successor Jurisdiction other than the mere holding of such Security and the receipt of payments with respect to such Security or (B) failure by the Holder to comply with any certification, shall be equal identification or other reporting requirement concerning the nationality, residence, identity or connection with Brazil or a Successor Jurisdiction, or applicable political subdivision or authority thereof or therein having power to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
a) any tax, feeof such Holder, dutyif compliance is required by Brazil or such Successor Jurisdiction, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder 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 or authority thereof or otherwise had some connection with therein having power to tax as a precondition to exemption from, or reduction in the Relevant Taxing Jurisdiction other than by reason of the mere ownership rate of, the tax, assessment or receipt other governmental charge and the Company has given the Holders at least 30 days’ notice that Holders will be required to provide such certification, identification or other requirement;
(ii) in respect of payment underany such taxes, the Series 18 Preferred Units duties, assessments or any Series 18 Preferred Units presented for payment other governmental charges with respect to a Security surrendered (where presentation if surrender is required for paymentrequired) more than 30 days after the Relevant Date (date on which such payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the holder Holder of such Security would have been entitled to such amounts if it had presented Additional Amounts on surrender of such units Security for payment on any the last day within of such 30 30-day period). The “Relevant Date” means;
(iii) in respect of estate, inheritance, gift, sales, transfer, personal property or similar tax, assessment or governmental charge imposed with respect to a Security;
(iv) in respect of any paymenttax, assessment or other governmental charge payable otherwise than by deduction or withholding from payments on any series of Securities or by direct payment by the Company in respect of claims made against the Company;
(v) where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to any European Union Directive on the taxation of savings implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 or any law implementing or complying with, or introduced in order to conform to, such directive; or
(vi) in respect of any combination of the above. For purposes of the provisions described in clause (i) above, the term “Holder” of any Security means the direct nominee of any beneficial owner of such Security, which holds such beneficial owner’s interest in such Security. Notwithstanding the foregoing, the limitations on the Company’s obligation to pay Additional Amounts set forth in clause (i) above shall not apply if the provision of information, documentation or other evidence described in such clause (i) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Security (taking into account any relevant differences between U.S. law, regulation or administrative practice and the law, regulation or administrative practice of Brazil or the Successor Jurisdiction) than comparable information or other reporting requirements imposed under U.S. tax law (including tax treaties between the United States and Brazil), regulation (including proposed regulations) and administrative practice. The Company shall promptly provide the Trustee with documentation, if any, (which may consist of certified copies of such documentation) reasonably satisfactory to the Trustee evidencing the payment of Foreign Taxes in respect of which the Company has paid any Additional Amounts. Copies of such documentation shall be made available to the Holders of the Securities or the Paying Agent, as applicable, upon request therefor. In respect of the Securities issued hereunder, at least 10 days prior to the first date of payment of interest on which the Securities and at least 10 days prior to each date, if any, of payment of principal or interest thereafter if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Company shall furnish the Trustee and each Paying Agent with an Officers’ Certificate instructing the Trustee and such Paying Agent as to whether such payment first becomes due of principal of or any interest on such Securities shall be made without deduction or withholding for or on account of any tax, duty, assessment or other governmental charge. If any such deduction or withholding shall be required by Brazil or any Successor Jurisdiction or any authority therein having power to tax, then such certificate shall specify, by country, the amount, if any, required to be deducted or withheld on such payment to Holders of such Securities, and payablethe Company shall pay or cause to be paid to the Trustee or such Paying Agent Additional Amounts, but if any, required by this Section. The Company agrees to indemnify the full amount Trustee and each 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 them in reliance on any Officers’ Certificate furnished pursuant to this Section, the obligation of the moneys payable has not been Company to so indemnify being joint and several.
10.7.2 The Company shall pay all stamp, issue, registration, documentary or other similar duties, if any, which may be imposed by Brazil or any other governmental entity or political subdivision therein or thereof, or any taxing authority of or in any of the foregoing, with respect to the Indenture or the issuance of the Securities.
10.7.3 The Company shall provide each Paying Agent and any withholding agent under relevant tax regulations with copies of each certificate received by the Company from a Holder of a Security pursuant to the text of such Security. Each such Paying Agent and withholding agent shall retain each such certificate received by it for as long as any Security is outstanding and in no event for less than four years after its receipt, and for such additional period thereafter, as set forth in an Officers’ Certificate, as such certificate may become material in the administration of applicable tax laws.
10.7.4 In the event that Additional Amounts actually paid with respect to the Securities pursuant to the preceding paragraph are based on rates of deduction or prior withholding of withholding taxes in excess of the appropriate rate applicable to such due date, it means the first date on which the full amount Holder of such moneys having been so received Securities, and, as a result thereof, such Holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Securities, be deemed to have assigned and being available transferred all right, title, and interest to any such claim for payment to holders and notice to that effect shall have been duly given a refund or credit of such excess to the Series 18 Holders;Company. However, by making such assignment, the Holder makes no representation or warranty that the Company will be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
10.7.5 All references in this Indenture and the Securities to principal, premium or interest in respect of any Security shall be deemed to mean and include all Additional Amounts, if any, payable in respect of such principal, premium or interest, unless the context otherwise requires, and express mention of the payment of Additional Amounts in any provision hereof shall not be construed as excluding reference to Additional Amounts in those provisions hereof where such express mention is not made. All references in this Indenture and the Securities to principal in respect of any Security shall be deemed to mean and include any Redemption Price or Repurchase Price payable in respect of such Security pursuant to any redemption or repurchase right hereunder (and all such references to the Stated Maturity of the principal in respect of any Security shall be deemed to mean and include the Redemption Date or Repurchase Date with respect to any such Redemption Price or Repurchase Price), and all such references to principal, premium, interest or Additional Amounts shall be deemed to mean and include any amount payable in respect hereof pursuant to this Section 10.7, and express mention of the payment of any Redemption Price or Repurchase Price, or any such other amount in any provision hereof shall not be construed as excluding reference to the payment of any Redemption Price or Repurchase Price, or any such other amounts in those provisions hereof where such express reference is not made.
Appears in 1 contract
Sources: Indenture (Vale Overseas LTD)
Payment of Additional Amounts. i. The Partnership shall make all (a) All payments on made by the Series 18 Preferred Units Obligors under or with respect to the Notes will be made free and clear of of, and without withholding or deduction at source for, for or on account of, any present Tax, unless the withholding or future taxes, fees, duties, assessments deduction of such Tax is then required by law. If any deduction or governmental charges withholding by any applicable withholding agent for or on account of whatever nature any Taxes imposed or levied by or on behalf of any Relevant Taxing jurisdiction (excluding the United States) in which an Obligor is organized, resident or carrying on business for tax purposes or from or through which such Obligor (or its agents) makes any payment on the Notes or the Guarantee, or any state, province, political subdivision or taxing authority therein or thereof (a “Tax Jurisdiction”), unless such taxes, fees, duties, assessments or governmental charges are will at any time be required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) made in respect of any Relevant Taxing Jurisdiction for payments made by the Series 18 Preferred Units Obligors under 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject with respect to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX Notes, including payments of Schedule Aprincipal, redemption price, purchase price, interest or premium, then the Obligors will pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so in order that every the net payment made to amounts received in respect of such holders, payments by each Holder of the Notes after such withholding withholding, deduction or deduction imposition (including any such withholding withholding, deduction or deduction from imposition in respect of any such Additional Amounts), shall be ) will equal to the respective amounts the Partnership that would otherwise have been required to pay had no received in respect of such payments in the absence of such withholding or deduction been required.
ii. The Partnership shall not be required to pay any deduction; provided, however, that no Additional Amounts for or on account ofwill be payable with respect to:
a(1) any taxTaxes, fee, duty, assessment or governmental charge of whatever nature that to the extent such Taxes would not have been imposed but for the fact that Holder of a Note (or the beneficial owner for whose benefit such holder was Holder holds such Note) or a residentfiduciary, domiciliary settlor, beneficiary, member or national ofshareholder of the Holder if the Holder is an estate, trust, partnership or corporation, or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as having a current or former connection with the relevant Tax Jurisdiction (other than a connection arising solely from the ownership or disposition of such Note, the enforcement of rights under such Note, or the receipt of any payments in respect of such note), including being or having been a citizen or resident of such Tax Jurisdiction, being or having engaged in a trade or business in such Tax Jurisdiction or maintained having or having had a permanent establishment or was physically present in, in such Tax Jurisdiction;
(2) any Holder that is not the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise had some connection with the Relevant Taxing Jurisdiction other than by reason sole beneficial owner of the mere ownership ofNotes, or receipt a portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficial owner with respect to the Holder, a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment underof Additional Amounts had the beneficial owner, beneficiary, settlor or member received directly its beneficial or distributive share of the Series 18 Preferred Units payment;
(3) any Taxes required to be withheld by any paying agent from any payment of principal of or interest on any Series 18 Preferred Units presented Note, if such payment can be made without such withholding by at least one other paying agent;
(4) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a note for payment (where presentation is required for payment) more than 30 days after the Relevant Date relevant payment is first made available for payment to the Holder (except to the extent that the holder Holder or beneficial owner would otherwise have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period);
(5) any Tax, assessment, or other governmental charge that is payable otherwise than by deduction or withholding from a payment on or in respect of any Note;
(6) any estate, inheritance, gift, sales, transfer, excise, wealth, capital gains, personal property or similar Taxes;
(7) any Taxes, to the extent such Taxes are imposed or withheld by reason of the failure of the Holder or beneficial owner of Notes to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the Holder or beneficial owner is legally eligible to provide such certification or documentation;
(8) any Taxes imposed by virtue of the Holder or beneficial owner of such Notes not dealing at arm’s length within the meaning of the Income Tax Act (Canada) with an Obligor;
(9) any Taxes imposed by virtue of the Obligor being a “specified entity” (as defined in subsection 18.4(1) of the Income Tax Act (Canada)) in respect of a Holder or beneficial owner of such Notes;
(10) any Taxes imposed by virtue of a Holder or beneficial owner of such Notes being a, or not dealing at arm’s length within the meaning of the Income Tax Act (Canada) with any, “specified shareholder” (as defined in subsection 18(5) of the Income Tax Act (Canada)) of the Obligor;
(11) any Taxes that are imposed or withheld pursuant to Sections 1471 through 1474 of the Code as of the date of the Indenture (or any amended or successor version that is substantively comparable), any regulations promulgated thereunder or any other official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code as of the date of the Indenture (or any amended or successor version described above) or any intergovernmental agreements (and any related law, regulation or official administrative guidance) implementing the foregoing; or
(12) any combination of items (1) through (11) above.
(b) Except as specifically provided for in this Section 4.06, the Obligors will not be required to make any payment for any Tax.
(c) If the Obligors become aware that they will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes, the Obligors will deliver to the Trustee and Paying Agent promptly prior to the date of that payment an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officers’ Certificate must also set forth any other information reasonably necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date. The Trustee and Paying Agent shall be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary.
(d) The Issuer or the Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Obligors will use their reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld.
(e) The Obligors will furnish to the Trustee and Paying Agent upon reasonable written request, within a reasonable time after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Obligors, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other reasonable evidence of payments by such entity.
(f) Where Tax is payable pursuant to Regulation 803 of the Income Tax Act (Canada) by a Holder or beneficial owner of Notes in respect of any amount payable under the Notes or the Guarantee (other than by reason of a transfer of the Notes to a person resident in Canada with whom the transferor does not deal at arm’s length for the purposes of the Income Tax Act (Canada)), but no Additional Amount is paid in respect of such Tax, the applicable Obligor will pay, as or on account of interest to the Holder or beneficial owner of the Notes, an amount equal to such Tax (a “Regulation 803 Reimbursement”) plus an amount equal to any Tax required to be paid by such Holder or Beneficial owner of the Notes as a result of such Regulation 803 Reimbursement within 45 days after receiving from the Holder or beneficial owner a notice containing reasonable particulars of the Tax so payable, provided such Holder or beneficial owner of the Notes would have been entitled to receive Additional Amounts on account of such amounts if Tax (and only to the extent of such Additional Amounts that such Holder or beneficial owner of the Notes would have been entitled to receive) but for the fact that it had presented such units for payment on is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes or the Guarantee.
(g) The above obligations will survive any day within such 30 day period). The “Relevant Date” meanstermination, in respect defeasance or discharge of the Indenture, any paymenttransfer by a Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any successor Person to the Obligors.
(h) As used under this Section 4.06, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it term “United States” means the first date on which United States of America, any state thereof and the full amount District of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;Columbia.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership 10.7.1 All payments in respect of the Securities shall make all payments on the Series 18 Preferred Units free and clear of and be made without withholding or deduction at source for, or on account of, for any present or future taxes, fees, duties, assessments or other governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or on behalf of the Cayman Islands, Brazil or any Relevant Taxing JurisdictionSuccessor Jurisdiction or any authority therein or thereof having power to tax (“Foreign Taxes”), unless except to the extent that such taxes, fees, duties, assessments or governmental charges Foreign Taxes are required by the Cayman Islands, Brazil, such Successor Jurisdiction or any such authority to be withheld or deducted by (i) deducted. In the laws (or any regulations or rulings promulgated thereunder) event of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredfor any Foreign Taxes, the Partnership shallCompany or the Guarantor, subject as the case may be, shall make such deduction or withholding, make payment of the amount so withheld to the limitations appropriate governmental authority and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be are necessary so to ensure that every the net payment made to amounts received by the Holders of Securities after such holderswithholding or deduction equals the respective amounts of principal, after premium and interest which would have been receivable in respect of such Securities had no such withholding or deduction (including for any Foreign Taxes payable in respect of Additional Amounts) been required, except that no such Additional Amounts shall be payable with respect to any payment on a Security:
(i) to, or to a third party on behalf of, a Holder who is liable for any such withholding taxes, duties, assessments or deduction from other governmental charges in respect of such Additional Amounts)Security by reason of (A) a connection between the Holder and the Cayman Islands or Brazil other than the mere holding of such Security and the receipt of payments with respect to such Security or (B) failure by the Holder to comply with any certification, shall be equal identification or other reporting requirement concerning the nationality, residence, identity or connection with the Cayman Islands, Brazil or a Successor Jurisdiction, or applicable political subdivision or authority thereof or therein having power to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
a) any tax, feeof such Holder, dutyif compliance is required by such Successor Jurisdiction, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder 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 or authority thereof or otherwise had some connection with therein having power to tax as a precondition to exemption from, or reduction in the Relevant Taxing Jurisdiction other than by reason of the mere ownership rate of, the tax, assessment or receipt other governmental charge and the Company has given the Holders at least 30 days’ notice that Holders will be required to provide such certification, identification or other requirement;
(ii) in respect of payment underany such taxes, the Series 18 Preferred Units duties, assessments or any Series 18 Preferred Units presented for payment other governmental charges with respect to a Security surrendered (where presentation if surrender is required for paymentrequired) more than 30 days after the Relevant Date (date on which such payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the holder Holder of such Security would have been entitled to such amounts if it had presented Additional Amounts on surrender of such units Security for payment on any the last day within of such 30 30-day period). The “Relevant Date” means;
(iii) in respect of estate, inheritance, gift, sales, transfer, personal property or similar tax, assessment or governmental charge imposed with respect to a Security;
(iv) in respect of any paymenttax, assessment or other governmental charge payable otherwise than by deduction or withholding from payments on any series of Securities or by direct payment by the date Company or the Guarantor in respect of claims made against the Company or the Guarantor;
(v) where such withholding or deduction is imposed on which such a payment first becomes due to an individual and payable, but if is required to be made pursuant to any European Union Directive on the full amount taxation of savings implementing the conclusions of the moneys payable has not been received by ECOFIN Council meeting of November 26-27, 2000 or any law implementing or complying with, or introduced in order to conform to, such directive; or
(vi) in respect of any combination of the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;above.
Appears in 1 contract
Sources: Indenture (Vale Overseas LTD)
Payment of Additional Amounts. i. The Partnership (a) All payments made by the Company or any Guarantor under or with respect to the Securities or any Guarantee shall make all payments on the Series 18 Preferred Units be made free and clear of and without withholding or deduction at source for, for or on account of, of any present or future taxes, fees, duties, assessments or governmental charges of whatever nature Taxes imposed or levied by or on behalf of any Relevant Taxing JurisdictionAuthority of the Federative Republic of Brazil or of Japan, unless the Company or such taxesGuarantor, feesas the case may be, duties, assessments or governmental charges are is required to be withheld withhold or deducted deduct any amount for or on account of Taxes by (i) law or by the laws (interpretation or administration thereof. If the Company or any regulations Guarantor is required to withhold or rulings promulgated thereunder) deduct any amount for or on account of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including a holding Taxes imposed by a court Taxing Authority of competent jurisdiction the Federative Republic of Brazil or by a taxing authority in of Japan from any Relevant Taxing Jurisdiction). If a withholding payment made under or deduction at source is requiredwith respect to the Securities or any Guarantee of such Guarantor, the Partnership shallCompany or such Guarantor, subject to as the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Acase may be, shall pay to the Series 18 Holders such additional amounts (the “"Additional Amounts”") as distributions as may be necessary so that every the net payment made to such holders, amount received by each Holder of Securities (including Additional Amounts) after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any less than the amount the Holder would have received if such Taxes had not been withheld or deducted. No such Additional Amounts for or on account of:
ashall be payable with respect to a payment made to a Holder of Securities (an "Excluded Holder") with respect to any tax, fee, duty, assessment or governmental charge of whatever nature that Tax which would not have been imposed imposed, payable or due: (i) but for the fact that such holder was the Holder (or where the Holder is an estate, nominee, trust, partnership or corporation, any fiduciary, settlor, beneficiary, member or shareholder) is a residentdomiciliary, domiciliary national or national resident of, or engaged engaging in business or maintained business, maintaining a permanent establishment or was physically present in, Brazil or Japan; (ii) but for the Relevant Taxing Jurisdiction failure to comply with a request by the Company or any political subdivision thereof Guarantor to satisfy any certification, identification or otherwise had some other reporting requirements, whether imposed by statute, treaty, regulation or administrative practices, concerning nationality, residence or connection with the Relevant Taxing Jurisdiction other than by reason of the mere ownership ofBrazil or Japan; or (iii) if, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment (where presentation is required required, the presentation for payment) more than payment had occurred within 30 days after the Relevant Date date such payment was due and payable or was provided for, whichever is later. The obligation to pay Taxes shall not apply to (except a) any estate, inheritance, gift, sales, transfer, personal property or any similar Tax or (b) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Securities. The Company or the Guarantor, as applicable, shall (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority (the "Taxing Authority") in accordance with applicable law. The Company or the Guarantor, as applicable, shall obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes and shall provide such certified copy to the Principal Paying Agent for prompt forwarding to the holder. The Company or the Guarantor, as applicable, shall attach to each certified copy a certificate stating (x) that the amount of withholding tax evidenced by the certified copy was paid in connection with payments in respect of the principal amount of Securities then outstanding and (y) the amount of such withholding tax paid per US$1,000 of principal amount of the Securities. If the Company or any Guarantor conducts business in any jurisdiction (the "Taxing Jurisdiction") other than the Federative Republic of Brazil or Japan in a manner which causes Holders to be liable for taxes on payments under the Securities or any Guarantee, as the case may be, for which they would not have been so liable but for such conduct of business in the Taxing Jurisdiction, the Additional Amounts provision described above shall be considered to apply to such Holders as if references in such provision to "Taxes" included taxes imposed by way of deduction or withholding by such Taxing Jurisdiction.
(b) The Company or such Guarantor, as the case may be, shall indemnify and hold harmless each Holder of Securities (other than an Excluded Holder) and upon written request of each Holder of Securities (other than an Excluded Holder), reimburse each such Holder, for the amount of (i) any such Taxes so levied or imposed on and paid by such Holder as a result of payments made under or with respect to the Securities, (ii) any liability (including penalties, interest and expenses) arising under or with respect to the foregoing clause (i), and (iii) any Taxes so levied or imposed with respect to any reimbursement under the foregoing clauses (i) or (ii), so that the net amount received by such Holder after such reimbursement shall not be less than the net amount the Holder would have received if Taxes on such reimbursement had not been imposed or levied, but excluding any Taxes on such Holder's net income.
(c) At least 30 days prior to each date on which any payment under or with respect to the Securities is due and payable (unless such obligation to pay Additional Amounts arises after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Company or any Guarantor shall be obligated to pay Additional Amounts with respect to such payment, the Company or such Guarantor shall deliver to the Trustee and each Paying Agent an Officers' Certificate stating the fact that such Additional Amounts shall be payable and shall specify by country the amounts to be payable and shall set forth such other information necessary to enable the Trustee and each Paying Agent to pay such Additional Amounts to Holders on the payment date. Each Officers' Certificate shall be relied upon until receipt of a further Officers' Certificate addressing such matters. The Company and any such Guarantor shall indemnify the Trustee and any Paying Agent for, and 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 Officers' Certificate furnished pursuant to this Section. Whenever in this Indenture there is mentioned, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section 10.08, to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” meansthat, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of any payment, the date on which such payment first becomes due this Section 10.08 and payable, but if the full amount express mention of the moneys payable has payment of Additional Amounts in any provisions hereof shall not been received by be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
(d) The obligations of the Paying Agent on Company and the Guarantors under this Section 10.08 shall survive the termination of this Indenture and the payment of all other amounts under or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given with respect to the Series 18 Holders;Securities.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership shall Company will make all payments on of principal of, and premium (if any) and interest on, the Series 18 Preferred Units free and clear of and Notes without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf within Luxembourg, any jurisdiction in which ArcelorMittal is resident for tax purposes or, in the case of a successor entity, any jurisdiction in which such successor entity is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Partnership shallCompany or any successor entity, subject as the case may be, will make such deduction or withholding, make payment of the amount so withheld to the limitations appropriate governmental authority and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, will pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every net payment made to will result in the receipt by the Holders of such holders, after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership that would otherwise have been required to pay received by such Holders had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any by the Relevant Jurisdiction, except that no Additional Amounts will be payable:
(a) for or on account of:
a(i) any tax, fee, duty, assessment or other governmental charge of whatever nature that would not have been imposed but for for:
(A) the fact that existence of any present or former connection between the Holder or beneficial owner of such holder was Note, as the case may be, and the Relevant Jurisdiction including, without limitation, such Holder or beneficial owner being or having been a resident, domiciliary citizen or national of, resident of such Relevant Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or maintained having or having had a permanent establishment or was physically present intherein, the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise had some connection with the Relevant Taxing Jurisdiction other than by reason of merely holding such Note or the mere ownership of, or receipt of payment under, payments thereunder;
(B) the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment presentation of such Note (where presentation is required for paymentrequired) more than 30 days after the Relevant Date later of the date on which the payment of the principal of, or premium (if any) or interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for, except to the extent that the holder Holder thereof would have been entitled to such amounts Additional Amounts if it had presented such units Note for payment on any day date within such 30 30-day period;
(C) the failure of the Holder or beneficial owner to comply with a timely and reasonable request of the Company or any successor entity addressed to the Holder or beneficial owner, as the case may be, to provide information, documentation and certification concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction, if and to the extent that due and timely compliance with such request would under applicable law, regulation or administrative practice have reduced or eliminated any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(D) the presentation of such Note (where presentation is required) for payment in the Relevant Jurisdiction, unless such Note could not have been presented for payment elsewhere;
(ii) any estate, inheritance, gift, sale, transfer, excise or personal property or similar tax, assessment or other governmental charge;
(iii) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (i) and (ii); or
(b) with respect to any payment of the principal of, or premium (if any) or interest on, such Note to a Holder who is a fiduciary, partnership or Person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner, or beneficial owner been the Holder thereof. The “Relevant Date” meansWhenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note, such mention will be deemed to include payment of Additional Amounts provided for in the Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect of any payment, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;thereof.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership All interest amounts payable in respect of the Notes shall make all payments on the Series 18 Preferred Units free and clear of and be made without deduction or withholding or deduction at source for, for or on account of, of any present or future taxes, fees, duties, assessments duties or governmental charges of whatever any nature whatsoever imposed or levied by way of deduction or withholding by or on behalf of any Relevant Taxing Jurisdictionthe Tax Jurisdiction (“Withholding Taxes”), unless such taxes, fees, duties, assessments deduction or governmental charges are withholding is required to be withheld or deducted by (i) law. In the laws (or any regulations or rulings promulgated thereunder) event of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredon payments of interest (but not in respect of the payment of any principal in respect of the Notes), the Partnership Issuer shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Afullest extent permitted by law, pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may will be necessary so in order that every the net payment made to such holdersamounts received by the Holders, after such withholding or deduction (including for or on account of any Withholding Taxes imposed upon or as a result of such withholding or deduction from such Additional Amounts)payment by the Tax Jurisdiction, shall be will equal to the respective amounts the Partnership which would otherwise have been required to pay had no receivable in the absence of such withholding or deduction; except that no such Additional Amounts shall be payable on account of any taxes, duties or governmental charges which:
(a) are payable by any person acting as custodian bank or collecting agent on the Holder’s or the beneficial owner’s behalf, or otherwise in any manner which does not constitute a deduction been required.or withholding by the Issuer from payments of interest made by the Issuer; or
ii. The Partnership shall (b) would not be required payable to pay the extent such deduction or withholding could be avoided or reduced if the Holder or beneficial owner of the Note (or any Additional Amounts financial institution through which the Holder or beneficial owner holds the Notes or through which payment on the Note is made) (i) makes a declaration of non-residence or other similar claim for exemption to the relevant tax authority or on account of:
acomplies with any reasonable certification, documentation, information or other reporting requirement imposed by the relevant tax authority or (ii) enters into or complies with any taxapplicable certification, feeidentification, dutyinformation, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder was a residentdocumentation, domiciliary or national ofregistration, or engaged in business other reporting requirement or agreement concerning accounts maintained a permanent establishment by the Holder or was physically present inbeneficial owner (or such financial institution) or concerning ownership of the Holder or beneficial owner (or financial institution) or concerning such Holder’s or beneficial owner’s (or such financial institution’s) nationality, the Relevant Taxing Jurisdiction residence, identity or any political subdivision thereof or otherwise had some connection with the Relevant Taxing Jurisdiction other than jurisdiction imposing such tax; or
(c) are payable by reason of the mere ownership ofHolder’s or the beneficial owner’s having, or receipt having had, some personal or business connection with the Tax Jurisdiction and not merely by reason of payment underthe fact that payments in respect of the Notes are, or for purposes of taxation are deemed to be, derived from sources in, or are secured in, the Series 18 Preferred Units or any Series 18 Preferred Units Tax Jurisdiction; or
(d) are presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except to the extent that the holder Holder or the beneficial owner would have been entitled to such amounts if it had presented such units Additional Amounts on presenting the same for payment on any the last day within of the period of 30 days assuming that day to have been a Business Day; or
(e) are deducted or withheld by a paying agent from a payment if the payment could have been made by another paying agent without such deduction or withholding; or
(f) would not be payable if the Notes had been kept in safe custody with, and the payments had been collected by, a banking institution; or
(g) are payable by reason of a change in law or practice that becomes effective more than 30 day period)days after the relevant payment of interest becomes due, or is duly provided for and notice thereof is given in accordance with Section 11.04 of the Base Subordinated Indenture, whichever occurs later. The “Relevant Date” meansMoreover, all amounts payable in respect of any payment, the date on which such payment first becomes due and payable, but if the full amount Notes shall be made subject to compliance with Sections 1471 through 1474 of the moneys payable has not been received by U.S. Internal Revenue Code of 1986 (the Paying Agent on “Code”), or prior any regulations or other official guidance promulgated thereunder, official interpretations thereof, or any applicable agreement entered into in connection therewith (including any agreement, law, regulation, or other official guidance implementing such agreement) (commonly referred to such due date, it means as the first date on which “Foreign Account Tax Compliance Act” or “FATCA”) and any applicable agreement described in Section 1471(b) of the full amount of such moneys having been so received and being available for payment to holders and notice to that effect Code. The Issuer shall have been duly given no obligation to pay Additional Amounts or otherwise indemnify a Holder or beneficial owner in connection with any such compliance with the Series 18 Holders;Code.
Appears in 1 contract
Sources: Sixth Supplemental Subordinated Indenture (Deutsche Bank Aktiengesellschaft)
Payment of Additional Amounts. i. The Partnership All payments of principal, premium, if any, and interest on Securities of any series shall make all payments on the Series 18 Preferred Units be made without set-off, counterclaim, fees, liabilities or similar deductions, and free and clear of of, and without deduction or withholding or deduction at source for, or on account of, any present or future taxes, feeslevies, imposts, duties, assessments charges or governmental charges fees of whatever whatsoever nature imposed now or levied hereafter imposed, levied, collected, deducted, withheld or assessed by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (Commonwealth of Puerto Rico or any regulations political subdivision or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdictionthereof or therein ("Taxes"). If a the Company or any agent thereof is required by law or regu- 79 lation to make any deduction or withholding for or deduction at source is requiredon account of Taxes, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, Company shall pay to the Series 18 Holders such additional amounts (the “"Additional Amounts”") as distributions as may shall be necessary so in order that every the net payment made to such holders, amounts received by the Holders of the Securities of any series or the holders or beneficial owners of any interest therein or rights in respect thereof after such deduction or withholding shall equal the amount that would have been receivable thereunder in the absence of such deduction or deduction (including any such withholding or deduction from withholding, except that no such Additional Amounts), Amounts shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account ofpayable:
(a) to any tax, fee, duty, assessment Holder of a Security or governmental charge any interest therein or rights in respect thereof where such deduction or withholding is required by reason of whatever nature such Holder having some connection with the Commonwealth of Puerto Rico or any political subdivision or taxing authority thereof or thereon other than the mere holding of and payment in respect of such security;
(b) in respect of any deduction or withholding that would not have been imposed required but for the fact that such holder was presentation by the Holder of 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 by reason of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented Security for payment (where presentation is required for payment) on a date more than 30 days after the Relevant Date of Maturity or the date on which payment thereof is duly provided for, whichever occurs later; or
(except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, c) in respect of any paymentdeduction or withholding that would not have been required but for the failure to comply with any certification, identification or other reporting requirements concerning the date on which such payment first becomes due and payablenationality, but if residence, identity or connection with the full amount Commonwealth of Puerto Rico, or any political subdivision or taxing authority thereof or therein, of the moneys payable has not been received Holder of a Security or any interest therein or rights in respect thereof, if compliance is required by the Paying Agent on Commonwealth of Puerto Rico, or prior any political subdivision or taxing authority thereof or therein, as a precondition to exemption from such due date, it means deduction or withholding. Any reference in the first date on which the full amount of such moneys having been so received and being available for payment Indenture to holders and notice principal or interest shall be deemed also to refer to any Additional Amounts that effect shall have been duly given to the Series 18 Holders;may be payable under this Section 1008.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership shall make all (a) All payments on that the Series 18 Preferred Units Company, any Subsidiary Guarantor or any Successor makes under or with respect to the Securities, or that any Subsidiary Guarantor makes with respect to any Guarantee, will be made free and clear of of, and without withholding or deduction at source for, for or on account of, any present or future taxestax, feesduty, dutieslevy, assessments impost, assessment or other governmental charges (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company, or, if applicable, any Subsidiary Guarantor or any Successor, as the case may be, is incorporated, organized or otherwise resident for tax purposes or from or through which any of the foregoing makes any payment on the Securities or by any taxing authority therein or political subdivision thereof (each, as applicable, a “Relevant Taxing Jurisdiction”), unless the Company, such taxesSubsidiary Guarantor or such Successor, feesas the case may be, duties, assessments or governmental charges are is required to be withheld withhold or deducted deduct Taxes by (i) law or by the laws (interpretation or administration of law. If the Company, a Subsidiary Guarantor or such Successor is required to withhold or deduct any regulations amount for, or rulings promulgated thereunder) on account of, Taxes of any a Relevant Taxing Jurisdiction for from any payment made under or with respect to the Series 18 Preferred Units Securities 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredGuarantee, the Partnership shallCompany, subject to such Subsidiary Guarantor or such Successor, as the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Acase may be, will pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so to ensure that every the net payment made to such holders, amount received by each Holder of the Securities after such withholding or deduction (including any will be not less than the amount the Holder would have received if such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have Taxes had not been required to pay had no such withholding be withheld or deduction been required.
iideducted. The Partnership shall not Notwithstanding the foregoing, neither the Company, any Subsidiary Guarantor nor any Successor will, however, be required to pay any Additional Amounts for to a Holder or beneficial owner of Securities in respect of or on account of:
a(i) any taxTaxes that are imposed or levied by a Relevant Taxing Jurisdiction by reason of the Holder’s or beneficial owner’s present or former connection with such Relevant Taxing Jurisdiction, feeincluding, dutywithout limitation, assessment the Holder or governmental charge of whatever nature that would not have beneficial owner being or having been imposed but for the fact that such holder was a citizen, national, or resident, domiciliary being or national ofhaving been engaged in a trade or business, being, or engaged having been, physically present in business or maintained having or having had a permanent establishment in a Relevant Taxing Jurisdiction (but not including, in each case, any connection arising from the mere receipt or was physically present inholding of Securities or the receipt of payments thereunder or under a Guarantee or the exercise or enforcement of rights under any Securities or this Indenture or a Guarantee);
(ii) any Taxes that are imposed or levied by reason of the failure of the Holder or beneficial owner of Securities, following the written request of the Company, any Subsidiary Guarantor or any Successor (as the case may be) addressed to the Holder (and made at a time that would enable the Holder or beneficial owner acting reasonably to comply with that request) made in accordance with the notice procedures set forth in this Indenture, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of withholding or deduction of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or any political subdivision thereof or otherwise had some connection with beneficial owner is not resident in the Relevant Taxing Jurisdiction other Jurisdiction);
(iii) any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(iv) any Tax that is payable otherwise than by withholding or deduction from payments made under or with respect to the Securities;
(v) any Tax that is imposed or levied by reason of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment presentation (where presentation is required for in order to receive payment) of such Securities for payment on a date more than 30 days after the Relevant Date (date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the holder beneficial owner or Holder thereof would have been entitled to such amounts if it Additional Amounts had the Securities been presented such units for payment on any day within date during such 30 30-day period). The “Relevant Date” means, ;
(vi) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed or levied on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive;
(vii) any Tax that is imposed or levied on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the Securities another paying agent in a Member State of the European Union; or
(viii) any combination of items (i) through (vii) above. Such Additional Amounts will also not be paid with respect to the Securities to a Holder who is a fiduciary, a partnership, a limited liability company or other than the sole beneficial owner of the payment under or with respect to the Securities, to the extent that payment would be required by the laws of a Relevant Taxing Jurisdiction to be included in the income, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership, an interest holder in that limited liability company or a beneficial owner who would not have been entitled to the Additional Amounts had it been the Holder of the Securities.
(b) The Company, the relevant Subsidiary Guarantor or the relevant Successor, as the case may be, will (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount withheld or deducted to the relevant taxing authority in accordance with applicable law.
(c) At least 30 calendar days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Company, any Subsidiary Guarantor or a Successor will be obligated to pay Additional Amounts with respect to such payment, the Company, the relevant Subsidiary Guarantor or the relevant Successor (as the case may be) will deliver to the Trustee an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which such payment first becomes under or with respect to the Securities is due and payable, but if in which case such Officers’ Certificate shall be delivered promptly thereafter). The Company, the full amount relevant Subsidiary Guarantor or the relevant Successor, as the case may be, will promptly publish a notice in accordance with the notice provisions set forth in this Indenture stating that such Additional Amounts will be payable and describing the obligation to pay such amounts.
(d) Upon written request, the Company, the relevant Subsidiary Guarantor or the relevant Successor, as the case may be, will furnish to the Trustee or to a Holder of the moneys payable has not been received Securities copies of tax receipts evidencing the payment of any Taxes by the Paying Agent Company, such Guarantor or such Successor in such form as provided in the normal course by the taxing authority imposing such Taxes and as is reasonably available to the Company, such Subsidiary Guarantor or such Successor. If, notwithstanding the efforts of the Company, such Subsidiary Guarantor or such Successor to obtain such receipts, the same are not obtainable, the Company, such Subsidiary Guarantor or such Successor will provide the Trustee or such Holder with other evidence reasonably satisfactory to the Trustee or the Holder.
(e) The Company, any Subsidiary Guarantor and any Successor, as the case may be, will pay any present or future stamp, issue, registration, court, documentation, excise or property taxes or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by or in any Relevant Taxing Jurisdiction in respect of the execution, issue, enforcement or delivery of the Securities or any other document or instrument referred to thereunder (other than on or prior in connection with a transfer of the Securities other than the initial resale by the underwriters named in the Prospectus).
(f) Whenever this Indenture or the Securities refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Security or with respect to any Guarantee, such due datereference includes the payment of Additional Amounts, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;if applicable.
Appears in 1 contract
Sources: Indenture (Mayfield Processing LLC)
Payment of Additional Amounts. i. The Partnership shall make all payments on the Series 18 17 Preferred Units free and clear of and without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 17 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX XVIII of Schedule A, pay to the Series 18 17 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every net payment made to such holders, after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
a) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder 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 by reason of the mere ownership of, or receipt of payment under, the Series 18 17 Preferred Units or any Series 18 17 Preferred Units presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 17 Holders;
Appears in 1 contract
Sources: Limited Partnership Agreement (Brookfield Infrastructure Partners L.P.)
Payment of Additional Amounts. i. The Partnership shall Issuer will make all payments on of Principal, interest and any other amounts on, or in respect of, the Series 18 Preferred Units free and clear of and Securities without a withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of Bermuda or any Relevant other jurisdiction in which the Issuer is otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority thereof or therein or any jurisdiction from or through which payment on the Securities is made (a “Taxing Jurisdiction”), unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (ix) the laws (or any regulations or rulings promulgated thereunder) of any Relevant a Taxing Jurisdiction for the Series 18 Preferred Units or any political subdivision or taxing authority thereof or therein or (iiy) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including including, without limitation, a holding by a court of competent jurisdiction or by a taxing authority in a Taxing Jurisdiction or any Relevant Taxing Jurisdictionpolitical subdivision thereof). If a withholding or deduction at source is required, the Partnership shallIssuer will, subject to the certain limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Adescribed below, pay to the Series 18 Holders Holder of any Security such additional amounts (the “Additional Amounts”) as distributions Amounts as may be necessary so that every net payment of Principal, interest or any other amount made to such holdersHolder, after such the withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall will not be equal less than the amount provided for in such Security or in the Indenture to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
iibe then due and payable. The Partnership shall Issuer will not be required to pay any Additional Amounts for or on account of:
a(1) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder 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 relevant Taxing Jurisdiction or any political subdivision thereof or otherwise had some connection with the Relevant relevant Taxing Jurisdiction other than by reason of the mere ownership of, or receipt of payment under, such Security, (b) presented, where presentation is required, such Security for payment in the Series 18 Preferred Units relevant Taxing Jurisdiction or any Series 18 Preferred Units political subdivision thereof, unless such Security could not have been presented for payment elsewhere, or (c) presented, where presentation is required required, such Security for payment) payment more than 30 days after the Relevant Date (date on which the payment in respect of such Security became due and payable or provided for, whichever is later, except to the extent that the holder Holder would have been entitled to such amounts Additional Amounts if it had presented such units Security for payment on any day within such 30 that 30-day period). The “Relevant Date” means;
(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 beneficial owner of such Security to comply with any reasonable request by the Issuer addressed to the Holder within 90 days of such request (a) to provide information concerning the nationality, residence or identity of the Holder or the beneficial owner or (b) to make any declaration or other similar claim or satisfy any information or reporting requirement, which 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;
(4) any withholding or deduction imposed on or in respect of any paymentSecurity pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), any current or future regulations or official interpretations thereof or intergovernmental agreements in connection therewith, and any agreements entered into pursuant to Section 1471(b)(1) of the Code; or
(5) any combination of items (1), (2), (3) and (4). In addition, the date on which Issuer will not pay Additional Amounts with respect to any payment of Principal, 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 if such payment first becomes due and payable, but if would be required by the full amount laws of the moneys payable has not been received by relevant Taxing Jurisdiction (or any political subdivision or relevant taxing authority thereof or therein) to be included in the Paying Agent on income for tax purposes of a beneficiary or prior partner or settlor with respect to such due datefiduciary or a member of such partnership or a beneficial owner to the extent such beneficiary, partner or settlor would not have been entitled to such Additional Amounts had it means been the first date on Holder of the Security. In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to this Indenture in effect from time to time (“Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Issuer agrees (i) to provide to the Trustee sufficient information about the parties and/or transactions (including any modification to the terms of such transactions) so the Trustee can determine whether it has tax-related obligations under Applicable Law and (ii) that the Trustee shall be entitled to make any withholding or deduction from payments to the extent necessary to comply with Applicable Law for which the full amount Trustee shall not have any liability. The Issuer will pay any present or future stamp, court or documentary taxes or other similar taxes, charges or levies that arise in any Taxing Jurisdiction (as defined above) from the execution, delivery, enforcement or registration of the Securities, the Indenture, or any other document or instrument required in relation thereof, and the Issuer will agree to indemnify the Holders for any such moneys having been so received taxes paid by such Holders. The obligations set forth in this Section 3.11 will survive any termination, defeasance or discharge of this Indenture and being available for payment will apply mutatis mutandis to holders and notice to that effect shall have been duly given any jurisdiction in which any successor Person to the Series 18 Holders;Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership shall make all payments on the Series 18 Preferred Units free and clear of and without withholding or deduction at source for, or on account of, If any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or other governmental charges are required imposed by the jurisdiction, other than the United States, where the Guarantor or a successor (a "Payor") is organized or otherwise considered to be withheld a resident for tax purposes, any jurisdiction, other than the United States, from or deducted by through which the Payor makes a payment on the Debentures, or, in each case, any political organization or governmental authority thereof or therein having the power to tax (ithe "Relevant Tax Jurisdiction") the laws (or any regulations or rulings promulgated thereunder) in respect of any Relevant Taxing Jurisdiction for payments under the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredDebentures, the Partnership shallPayor shall pay to each holder of a Debenture, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Aextent it may lawfully do so, pay to the Series 18 Holders such additional amounts (the “"Additional Amounts”") as distributions as may be necessary so in order that every the net payment made amounts paid to such holdersholder will be not less than the amount specified in such Debenture to which such holder is entitled; provided, after such withholding or deduction (including any such withholding or deduction from such Additional Amounts)however, shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership Payor shall not be required to pay make any payment of Additional Amounts for or on account of:
(a) any tax, fee, duty, assessment or other governmental charge of whatever nature that which would not have been imposed but for (i) the fact that existence of any present or former connection between such holder was (or between a residentfiduciary, domiciliary settlor, beneficiary, member or national shareholder of, or possessor of a power over, such holder, if such holder is an estate, trust, partnership, limited liability company or corporation) and the Relevant Tax Jurisdiction including, without limitation, such holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or maintained having or having had a permanent establishment therein or was physically present in, (ii) the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise had some connection with the Relevant Taxing Jurisdiction other than by reason presentation of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment a Debenture (where presentation is required required) for payment) payment on a date more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, x) the date on which such payment first becomes became due and payable, but if payable or (y) the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which payment thereof is duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer, personal property or similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of (or in respect of) principal of, premium, if any, or any interest on, the full amount Debentures;
(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 the Debenture to comply with a request of the Payor addressed to the holder to provide information, documents or other evidence concerning the nationality, residence or identity of the holder or such beneficial owner which is required by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such moneys having been so received and being available for tax, assessment or other governmental charge; or
(e) any combination of the above; nor will Additional Amounts be paid with respect to any payment of the principal of, or any premium or interest on, any Debenture to any holder who is a fiduciary or partnership or limited liability company or other than the sole beneficial owner of such payment to holders and notice the extent such payment would be required by the laws of the Relevant Tax Jurisdiction to that effect shall be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership, limited liability company or beneficial owner who would not have been duly given entitled to such Additional Amounts had it been the holder of such Debenture. The Payor shall provide the Trustee with the official acknowledgment of the relevant tax authority (or, if such acknowledgment is not available, a certified copy thereof) evidencing the payment of the withholding taxes by the Payor. Copies of such documentation shall be made available to the Series 18 Holders;holders of the Debentures or the paying agent, as applicable, upon request therefor.
SECTION 4. The Indenture, as supplemented and amended by this Supplemental Indenture and all other supplemental indentures thereto, is in all respects ratified and confirmed, and the Indenture, the Supplemental Indenture and all indentures supplemental thereto shall be read, taken and construed as one and the same instrument; provided, however, that this Supplemental Indenture shall apply only to the Notes and any Subsequent Debentures.
SECTION 5. If and to the extent any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in this Supplemental Indenture by any provision of the Trust Indenture Act of 1939, such required provision shall control.
SECTION 6. In case any provision in this Supplemental Indenture or in the Debentures of any series shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions (or of the other series of Debentures) shall not in any way be affected or impaired thereby.
SECTION 7. If the provisions of the Notes or any series of the Subsequent Debentures issued hereunder are inconsistent or conflict with the provisions of this Supplemental Indenture, the provisions of the Notes or the Subsequent Debentures of such series shall be controlling with respect to such series.
SECTION 8. This Supplemental Indenture and each Debenture of any series shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of the said State.
SECTION 9. Capitalized terms used in this Supplemental Indenture that are not otherwise defined herein that are defined in the Indenture shall remain as set forth therein.
SECTION 10. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original but such counterparts shall together constitute but one and the same instrument.
SECTION 11. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Third Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made solely by the Company and the Guarantor.
Appears in 1 contract
Sources: Third Supplemental Indenture (Cooper Industries LTD)
Payment of Additional Amounts. i. The Partnership (a) All payments by Grupo Aval Limited or Grupo Aval in respect of the Notes or the Guarantees shall make all payments on the Series 18 Preferred Units be made free and clear of and without any withholding or deduction at source for, for or on account of, of any present or future Taxes, unless the withholding or deduction of such Taxes is required by law or the official interpretation thereof, or by the administration thereof. If Grupo Aval Limited or Grupo Aval shall be required by any law of any Taxing Jurisdiction to withhold or deduct any Taxes from or in respect of any sum payable under the Notes or the Guarantees, Grupo Aval Limited or Grupo Aval, as the case may be, shall (a) pay such additional amounts (“Additional Amounts”) as may be necessary in order that the net amounts receivable by Holders of any Notes after such withholding or deduction equals the respective amounts which would have been receivable by such Holders in the absence of such withholding or deduction, (b) make such withholding or deduction, and (c) pay the full amount withheld or deducted to the relevant tax or other authority in accordance with applicable law, except that no such Additional Amounts shall be payable in respect of any Note:
(i) to the extent that such Taxes are imposed or levied by reason of such Holder (or the beneficial owner) having some connection with the Taxing Jurisdiction other than the mere holding (or beneficial ownership) of such Note or receiving principal or interest payments on the Note (including but not limited to citizenship, nationality, residence, domicile, or existence of a business, permanent establishment, a dependent agent, a place of business or a place of management present or deemed present in the Taxing Jurisdiction);
(ii) to the extent that any Tax is imposed other than by deduction or withholding from payments of principal of or premium, if any, or interest on the Notes;
(iii) in the event that the Holder (or beneficial owner) fails to comply with any certification, identification or other reporting requirement concerning nationality, residence, identity or connection with the Taxing Jurisdiction if (1) compliance is required by applicable law, regulation, administrative practice or treaty as a precondition to exemption from all or part of the Taxes, and (2) Grupo Aval Limited or Grupo Aval, as the case may be, has given the Holders (or beneficial owners) at least 30 days prior notice that they shall be required to comply with such requirement;
(iv) in the event that the Holder fails to surrender (where surrender is required) its Note for payment within 30 days after Grupo Aval Limited or Grupo Aval, as the case may be, has made available a payment of principal or interest, provided that Grupo Aval Limited or Grupo Aval, as the case may be, shall pay Additional Amounts to which a Holder would have been entitled had the Note been surrendered on the last day of such 30-day period;
(v) to the extent that such Taxes are imposed by reason of an estate, inheritance, gift, personal property, value added, use or sales tax or any similar taxes, fees, duties, assessments or other governmental charges charges;
(vi) where such withholding or deduction of whatever nature Taxes is imposed on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC or levied any other Directive on the taxation of savings implementing the conclusions of the European Council of Economic and Finance Ministers (ECOFIN) meeting of 26 and 27 November 2000 or any law implementing or complying with, or introduced in order to conform to, such Directive;
(vii) by or on behalf of a Holder who would have been able to avoid such withholding or deduction of Taxes by presenting the relevant Note to another Paying Agent in a member state of the European Union; or
(viii) any Relevant combination of items (i) through (vii) above.
(b) No Additional Amounts shall be paid to a Holder that is a fiduciary or a partnership or not the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or such beneficial owner would not have been entitled to receive the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder.
(c) Grupo Aval Limited or Grupo Aval, as the case may be, shall provide the Trustee with the official acknowledgment of the relevant Taxing JurisdictionJurisdiction (or, unless if such acknowledgment is not available, other reasonable documentation) evidencing any payment of any Taxes in respect of which Grupo Aval Limited or Grupo Aval, as the case may be, has paid any Additional Amounts. Copies of such documentation shall be made available to the Holders of the Notes or the Paying Agents, as applicable, upon request therefor.
(d) Grupo Aval Limited or Grupo Aval, as the case may be, shall also pay any present or future stamp, issue, registration, court or documentary taxes or any excise or property taxes, charges or similar levies (including any penalties, interest and other liabilities relating thereto) which arise in any jurisdiction from the execution, delivery, registration or the making of payments in respect of the Notes and the related Guarantees, excluding any such taxes, feescharges or similar levies imposed by any jurisdiction that is not a Taxing Jurisdiction other than those resulting from, dutiesor required to be paid in connection with, assessments the enforcement of the Notes and the related Guarantees following the occurrence of any Default or governmental charges are Event of Default.
(e) All references in this Indenture to principal of and premium, if any, and interest on the Notes shall include any Additional Amounts payable by Grupo Aval Limited or Grupo Aval, as the case may be, in respect of such principal, premium, if any, and interest.
(f) At least ten Business Days prior to the first Interest Payment Date (and at least ten Business Days prior to each succeeding Interest Payment Date but only if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate), Grupo Aval Limited shall furnish to the Trustee and the Paying Agents an Officers’ Certificate instructing the Trustee and the Paying Agents whether payments of principal of or interest on the Notes due on such Interest Payment Date shall be without deduction or withholding for or on account of any Taxes. If any such deduction or withholding shall be required, prior to such Interest Payment Date, Grupo Aval Limited shall furnish the Trustee and the Paying Agents with an Officers’ Certificate which specifies the amount, if any, required to be withheld or deducted by (i) on such payment to Holders of the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations Notes and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, certifies that Grupo Aval Limited shall pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every net payment made to such holders, after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal amount to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been requiredappropriate Taxing Jurisdiction.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
a) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder 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 by reason of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership (a) All payments in respect of this Note (including any premium paid upon redemption of this Note) made by or on behalf of the Note Parties (including any successor entity) shall make all payments on the Series 18 Preferred Units be made free and clear of of, and without withholding or deduction at source for, for or on account of, any present or future taxes, imposts, levies, duties, charges, fees, dutiesassessments, assessments withholdings (including backup withholding) or governmental charges of whatever nature other deductions (“Taxes”), imposed or levied by or on behalf of Brazil, the United States, the Cayman Islands or any Relevant authority therein or thereof or any other jurisdiction in which the Note Parties (or in each case, their respective successors) are organized or doing business or from or through which payments are made in respect of this Note or any political subdivision or taxing authority thereof or therein (any of the aforementioned being a “Taxing Jurisdiction”, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws Notes Parties (or any regulations their respective successors) are compelled by law to deduct or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units or (ii) an official position regarding the application, administration, interpretation or enforcement of any withhold such laws, regulations or rulings (including a holding by a court of competent jurisdiction or by a taxing authority in any Relevant Taxing Jurisdiction)Taxes. If a withholding or deduction at source is requiredIn such event, the Partnership shallNotes Parties (or their respective successors) will make such deduction or withholding, subject make payment of the amount so withheld to the limitations appropriate Governmental Authority and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so to ensure that every the net payment made to such holders, amounts received by Holders after such withholding or deduction shall equal the respective amounts of principal and interest (including any or other amounts stated to be payable under this Note) which would have been received in respect of this Note in the absence of such withholding or deduction from (“Additional Amounts”).
(b) Notwithstanding the foregoing, the Note Parties shall not be required to pay Additional Amounts for or on account of any of the following:
(i) to, or to a third party on behalf of, a Holder or beneficial owner who is liable for such Taxes in respect of such note by reason of the existence of any present or former connection between such Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, member, partner or shareholder of such Holder or beneficial owner, if such Holder or beneficial owner is an estate, a trust, a limited liability company, a partnership, or a corporation) and the relevant Taxing Jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment, office or branch therein, other than the mere holding of this Note or enforcement of rights under the Indenture and the receipt of payments with respect to this Note;
(ii) in respect of Taxes that would not have been so withheld or deducted if this Note had been surrendered or presented for payment (if surrender or presentment is required) not more than thirty (30) days after the date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to holders, whichever occurs later, except to the extent that payments under this Note would have been subject to withholdings and the Holder or beneficial owner of this Note would have been entitled to such Additional Amounts), shall on surrender of this Note for payment on the last day such period of thirty (30) days;
(iii) to, or to a third party on behalf of, a Holder or beneficial owner who is liable for such Taxes by reason of such Holder or beneficial owner’s failure to comply, with any certification, identification, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder or beneficial owner, if (1) compliance is required by law or an applicable income treaty as a precondition to, exemption from, or reduction in the rate of, the Tax and (2) the Issuer has given the Holders and beneficial owners at least thirty (30) days’ notice that Holders and beneficial owners will be equal required to provide such certification, identification, documentation or other requirement;
(iv) in respect of any estate, inheritance, gift, sales, transfer, excise or personal property or similar Tax
(v) in respect of any Tax which is payable other than by deduction or withholding from payments of principal of (including premium) or interest on this Note; or
(vi) [reserved]; and
(vii) any combination of the items in the clauses above.
(c) Notwithstanding anything to the amounts contrary in Section 4.05 of the Partnership would otherwise have been required to pay had no such withholding Indenture, none of the Issuer, the Guarantors, their respective successors, a Paying Agent or deduction been required.
ii. The Partnership any other Person shall not be required to pay any Additional Amounts with respect to any payment in respect of any Taxes imposed under Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”), or any successor law or regulation implementing or complying with, or introduced in order to conform to, such Sections, or imposed pursuant to any intergovernmental agreement or any agreement entered into pursuant to Section 1471(b)(1) of the Code.
(d) No Additional Amounts shall be paid with respect to any payment on this Note to a Holder or beneficial owner who is a fiduciary, a partnership, a limited liability company or other than the sole beneficial owner of that payment to the extent that payment would be required by the relevant Taxing Jurisdiction to be included in the income, for Tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership, an interest holder in a limited liability company or a beneficial owner who would not have been entitled to the Additional Amounts had that beneficiary, settlor, member or beneficial owner been the Holder.
(e) Payments on the notes are subject in all cases to any Tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above, none of the Issuer, the Guarantors or their respective successors shall be required to pay Additional Amounts with respect to any Tax imposed by any government or a political subdivision or taxing authority thereof or therein.
(f) In the event that Additional Amounts actually paid with respect to this Note are based on rates of deduction or withholding of withholding Taxes in excess of the appropriate rate applicable to the Holder or beneficial owner of this Note, and, as a result thereof such Holder or beneficial owner is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding Tax, then such Holder or beneficial owner, as applicable, shall, by accepting such notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess to the Issuer.
(g) [Reserved].
(h) Any reference in the Indenture or this Note to principal, premium, interest or any other amount payable in respect of this Note by the Issuer (or its successors) or in respect of the Note Guarantees by the Guarantors (or their successors) shall be deemed also to refer to any Additional Amounts, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this Section 4.05 of the Indenture.
(i) Each of the Issuer and the Guarantors shall agree that if any of the Issuer or the Guarantors, as applicable, is required under applicable law to make any deduction or withholding on payments of principal of or interest on this Note for or on account of:
aof any Tax, at least ten (10) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for days prior to the fact that first payment date on this Note and at least ten (10) days prior to each payment date thereafter where such holder was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present inwithholding is required, the Relevant Issuer or the Guarantor, as applicable, shall furnish the Trustee and a Paying Agent with an Officers’ Certificate (but only if there has been any change with respect to the matters set forth in any previously delivered Officers’ Certificate) instructing the Trustee and a Paying Agent as to whether such payment of principal of or interest on this Note shall be made without deduction or withholding for or on account of any Tax, or, if any such deduction or withholding shall be required by the Taxing Jurisdiction, then such certificate shall: (i) specify the amount required to be deducted or withheld on such payment to the relevant recipient; (ii) certify that the Issuer or the Guarantors, as applicable, shall pay such deduction or withholding amount to the appropriate taxing authority; and (iii) certify that the Issuer or the Guarantors, as applicable, shall pay or cause to be paid to the Trustee or a Paying Agent such Additional Amounts as are required by Section 4.05 of the Indenture.
(j) Each of the Issuer and the Guarantors (or their respective successor) will pay any Taxes required to be deducted or withheld pursuant to applicable law and will furnish to the Holders, within sixty (60) days after the date such payment is due, either certified copies of Tax receipts evidencing such payment, or, if such receipts are not obtainable, other evidence of such payments reasonably satisfactory to the Holders.
(k) The Issuer or the Guarantors, as applicable, will pay when due any present or future stamp, transfer, court or documentary Taxes or any other excise or property Taxes imposed by a Taxing Jurisdiction (or any political subdivision or governmental authority thereof or otherwise had some connection therein having power to Tax) with respect to the Relevant Taxing Jurisdiction other than by reason initial execution, delivery or registration of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units this Note or any Series 18 Preferred Units presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by the Paying Agent on other document or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;instrument relating hereto.
Appears in 1 contract
Sources: Indenture (Azul Sa)
Payment of Additional Amounts. i. (a) The Partnership Issuer shall make all payments on in respect of the Series 18 Preferred Units Notes or any Note Guarantee free and clear of of, and without withholding or deduction at source for, for or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or on behalf within Bermuda (or, in the case of a payment pursuant to its applicable Note Guarantee, Chile or Spain) or by or within any Relevant Taxing Jurisdictionpolitical subdivision thereof or any authority therein or thereof having power to tax or any other jurisdiction through which payments are made in respect of the Notes or any Note Guarantee (“Taxes”), unless such taxes, fees, duties, assessments withholding or governmental charges are deduction is required to be withheld by law or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units or (ii) an official position regarding the application, administration, interpretation or enforcement administration thereof. In the event of any such laws, regulations or rulings (including a holding by a court of competent jurisdiction or by a taxing authority in any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredof Taxes, the Partnership shallIssuer or a Guarantor, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Aas applicable, will pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so will result in the receipt by each Holder of the net amount that every net payment made to such holders, after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no receivable by such Holder in the absence of such withholding or deduction, except that no such Additional Amounts will be payable:
(i) in respect of any Taxes that would not have been so withheld or deducted but for the existence of any present or former connection including, without limitation, a permanent establishment in Bermuda (or, in the case of a payment pursuant to its Note Guarantee, Chile or Spain) or between the Holder, applicable recipient of payment or beneficial owner of the Note or any payment in respect of such Note (or, if the Holder or beneficial owner is an estate, nominee, trust, partnership, corporation or other business entity, between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, the Holder, applicable recipient of a payment or beneficial owner) and an authority with the power to levy or otherwise impose or assess a Tax, other than the mere receipt of such payment or the mere holding or ownership of such Note or beneficial interest or the enforcement of rights thereunder;
(ii) in respect of any Taxes that would not have been so withheld or deducted if the Note had been presented for payment within 30 days after the Relevant Date to the extent presentation is required (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented for payment on the last day of such 30-day period);
(iii) in respect of any Taxes that would not have been so withheld or deducted but for the failure by the Holder or the beneficial owner of the Note or any payment in respect of such Note to (i) make a customary declaration of non-residence, or any other claim or filing for exemption, to which it is entitled or (ii) comply with any customary certification, identification, information, documentation or other reporting requirement concerning its nationality, residence, identity or connection with Bermuda, Chile or Spain, as applicable, or with any jurisdiction through which payments are made; provided that such declaration or compliance was required as a precondition to exemption from all or part of such Taxes and the Issuer or a Guarantor, as applicable has given the Holders at least 30 days prior notice that they will be required to comply with such requirements;
(iv) in respect of any estate, inheritance, gift, valued added, sales, use, excise, transfer, personal property or similar taxes, duties, assessments or other governmental charges;
(v) in respect of any Taxes that are payable otherwise than by deduction or withholding from payments on the Notes or any Note Guarantee;
(vi) in respect of any Taxes that would not have been so imposed if the Holder had presented the Note for payment (where presentation is required.) to another Paying Agent;
ii(vii) in respect of any payment to a Holder of a Note that is a fiduciary or partnership (including an entity treated as a partnership for tax purposes) or any Person other than the sole beneficial owner of such payment or Note, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment or Note would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note; or
(viii) in respect of any combination of paragraphs (i) through (vii) above. The Partnership Notwithstanding the foregoing, none of the Issuer, a Guarantor, any Paying Agent or any other person shall not be required to pay any Additional Amounts for with respect to any withholding or deduction imposed on account of:
a) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder 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 by reason of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any paymentnote pursuant to Sections 1471 to 1474 of the U.S. Code (“FATCA”), any treaty, law, regulation or other official guidance enacted by any jurisdiction implementing FATCA or an intergovernmental agreement with respect to FATCA or any similar legislation imposed by any other governmental authority, or any agreement between the Issuer and the United States or any authority thereof implementing FATCA. Notwithstanding the foregoing, the limitations on the Issuer’s or a Guarantor’s obligations to pay Additional Amounts set forth in paragraph (iii) will not apply if the provision of any certification, identification, information, documentation or other reporting requirement described in such paragraph (iii) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulations and administrative practice (such as IRS Forms W-8 and W-9).
(b) Prior to each date on which any payment under or with respect to the Notes or any Note Guarantee is due and payable (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which such payment first becomes under or with respect to the Notes or any Note Guarantee is due and payable, but in which case it will be as soon as reasonably practicable thereafter), if the full amount Issuer or a Guarantor, as applicable, will be obligated to pay Additional Amounts with respect to such payment, the Issuer or a Guarantor, as applicable, will deliver to the Trustee an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable the Trustee to pay such Additional Amounts to the Holders of such Notes or any Note Guarantee on the payment date.
(c) The Trustee and each Paying Agent may withhold Taxes, to the extent it reasonably believes it is required to do so under applicable law, including, without limitation, any withholding or deduction related to FATCA. The Issuer or a Guarantor, as applicable, shall furnish to the Trustee documentation reasonably satisfactory to the Trustee evidencing payment of any Taxes so deducted or withheld. Copies of such documentation will be made available by the Trustee to Holders upon written request to the Trustee.
(d) The Issuer shall promptly pay when due any present or future stamp, court or similar documentary taxes or any other excise or property taxes, charges or similar levies that arise in any jurisdiction from the execution, enforcement, delivery or registration of each Note or any other document or instrument referred to herein or therein, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside of the moneys payable has not been received by the Paying Agent on United Sates, Bermuda, Chile or prior to such due dateSpain and except, it means the first date on which the full amount in certain cases, for taxes, charges or similar levies resulting from certain registration of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;transfer or exchange of Notes.
Appears in 1 contract
Sources: Indenture (GeoPark LTD)
Payment of Additional Amounts. i. The Partnership shall make all (a) All payments on by the Series 18 Preferred Units free Issuer or the Guarantor in respect of the Notes and clear of and the Note Guaranty will be made without withholding or deduction at source for, for or on account of, any present or future taxes, fees, duties, assessments assessments, fees or other governmental charges of whatever nature (and any fines, penalties or interest related thereto) imposed or levied by or on behalf of the Cayman Islands, Brazil or, following any Relevant merger, consolidation, transfer, liquidation, winding-up, dissolution or assumption of obligations in accordance with Sections 4.07 and 4.11 hereof, the jurisdiction in which the resulting, surviving or transferee Person is incorporated, resident for tax purposes or treated as engaged in business, or, in each case, any political subdivision thereof or taxing authority therein (each, a “Taxing Jurisdiction”), unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredrequired by law. In that event, the Partnership shall, subject to Issuer or the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, Guarantor will pay to the Series 18 Holders each Holder such additional amounts (the “Additional Amounts”) as distributions as may be necessary so in order that every net payment made to such holders, by the Issuer or the Guarantor on each Note after such deduction or withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
a) of any present or future tax, feepenalty, fine, duty, assessment or other governmental charge imposed upon or as a result of whatever nature that such payment by the Taxing Jurisdiction will not be less than the amount then due and payable on such Note. The foregoing obligation to pay Additional Amounts, however, will not apply to:
(i) any tax, assessment or other governmental charge which would not have been imposed but for the fact that existence of any present or former connection between such holder was Holder (or between a residentfiduciary, domiciliary settlor, beneficiary, member or national ofshareholder of such Holder, if such Holder is an estate, a trust, a partnership or a corporation) or beneficial owner, on the one hand, and the Taxing Jurisdiction, on the other hand, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member or shareholder) or beneficial owner being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein or having, or engaged in business or maintained having had, a permanent establishment or was physically present intherein, the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise had some connection with the Relevant Taxing Jurisdiction other than by reason of but not including the mere ownership of, or receipt of such payment underor the ownership or holding of such Note;
(ii) any tax, assessment or other governmental charge which would not have been so imposed but for the Series 18 Preferred Units or any Series 18 Preferred Units presented presentation by such Holder for payment (where presentation is required for paymentrequired) on a date more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment first becomes became due and payablepayable or the date on which payment thereof is duly provided for, whichever occurs later;
(iii) the extent that the taxes, duties, assessments or other governmental charges would not have been imposed but if for the full amount failure of such Holder or beneficial owner to comply with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of the moneys payable has not been received Holder if (a) such compliance is required or imposed by the Paying Agent on statute, regulation or other applicable law of such Taxing Jurisdiction as a precondition to exemption from all or a part of such tax, assessment or other governmental charge and (b) at least 30 days prior to such due date, it means the first date on which the full amount Issuer or the Guarantor applies this clause (iii) the Issuer or the Guarantor will have notified all Holders of Notes that some or all Holders of Notes shall be required to comply with such requirement;
(iv) a tax, assessment or other governmental charge imposed on a payment to an individual and required to be made pursuant to the European Union Directive on the taxation of savings, which was adopted on June 3, 2003, or any law implementing or complying with, or introduced in order to conform to, that directive;
(v) any tax, assessment or governmental charge imposed on a Note presented for payment by or on behalf of a Holder who would have been able to avoid that withholding or deduction by presenting the relevant Note to another Paying Agent in a member state of the European Union;
(vi) any estate, inheritance, gift, sales, transfer or personal property tax or similar tax;
(vii) any tax, assessment or governmental charge payable other than by deduction or withholding from payments of principal or of interest on the Note; or
(viii) any combination of items (i) through (vii) above.
(b) The Issuer or the Guarantor shall also pay any present or future stamp, court or documentary taxes or any other excise taxes, charges or similar levies which arise in any jurisdiction from the execution, delivery, registration or the making of payments in respect of the Notes, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside of any Taxing Jurisdiction other than those resulting from, or required to be paid in connection with, the enforcement of the Notes following the occurrence of any Default or Event of Default.
(c) No Additional Amounts shall be paid with respect to a payment on a Note or under the Note Guaranty to a Holder that is a fiduciary or partnership or other than the sole beneficial owner of such moneys having been so received and being available for payment to holders and notice the extent a beneficiary or settlor with respect to that effect shall such fiduciary or a member of such partnership or beneficial owner would not have been duly given entitled to receive payment of the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note.
(d) The Issuer or the Guarantor will provide the Trustee with the official acknowledgment of the relevant taxing authority (or, if such acknowledgment is not available, a certified copy thereof, if available) evidencing the payment of taxes in any Taxing Jurisdiction in respect of which the Issuer or the Guarantor has paid any Additional Amounts. Copies of such documentation will be made available to the Series 18 Holders;Holders of the Notes or the Paying Agents, as applicable, upon written request therefor.
(e) The Issuer or the Guarantor will:
(i) at least 10 Business Days prior to the first Interest Payment Date for any Notes (and at least 10 Business Days prior to each succeeding Interest Payment Date or any Optional Redemption Date or Stated Maturity Date if there has been any change with respect to the matters set forth in the below-mentioned officer’s certificate), deliver to the Trustee and each Paying Agent an officer’s certificate (i) specifying the amount, if any, of taxes described in this
Appears in 1 contract
Sources: Indenture
Payment of Additional Amounts. i. (a) The Partnership shall Company will make all payments on the Series 18 Preferred Units A Preference Shares free and clear of and without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (ix) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units or (iiy) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including including, without limitation, a holding by a court of competent jurisdiction or by a taxing authority in any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shallCompany will, subject to the certain limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Adescribed below, pay to the holders of the Series 18 Holders A Preference Shares such additional amounts (the “Additional Amountsadditional amounts”) as distributions dividends as may be necessary so that every net payment made to such holderspayment, after such withholding or deduction (including any such withholding or deduction from such Additional Amountsadditional amounts), shall will be equal to the amounts the Partnership Company would otherwise have been required to pay had no such withholding or deduction been required.
ii. (b) The Partnership shall Company will not be required to pay any Additional Amounts additional amounts for or on account of:
a(i) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder 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 by reason of the mere ownership of, or receipt of payment under, the such Series 18 Preferred Units A Preference Shares or any Series 18 Preferred Units A Preference Shares presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units shares for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by the Paying Agent dividend disbursing agent on or prior to such due date, it means the first date on which which, the full amount of such moneys having been so received and being available for payment to holders and holders, notice to that effect shall have been duly given to the holders of the Series 18 HoldersA Preference Shares;
Appears in 1 contract
Payment of Additional Amounts. i. (a) The Partnership shall Company will make all payments on under the Series 18 Preferred Units free and clear of and Notes without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or similar governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, (“Taxes”) unless such taxes, fees, duties, assessments or governmental charges Taxes are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units taxing jurisdiction or (ii) an any official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including including, without limitation, a holding by a court of competent jurisdiction or by a taxing authority in any Relevant Taxing Jurisdictiona taxing jurisdiction). If a any such withholding or deduction at source is requiredrequired with respect to any Tax imposed or levied by any Relevant Taxing Jurisdiction, the Partnership shallCompany will, subject to the certain limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Adescribed below, pay to the Series 18 Holders each holder of any Notes such additional amounts (the “Additional Amounts”) as distributions as may be necessary necessary, if any, so that every net payment of principal, premium, if any, interest or any other amount made to such holdersholder under the Notes, after such withholding or deduction deduction, will equal the amount provided for in the Indenture to be then due and payable (including any such withholding or deduction from such additional amounts, “Additional Amounts”), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall (b) Notwithstanding the foregoing, the Company will not be required to pay any Additional Amounts for or on account of:
a(i) any tax, fee, duty, assessment or governmental charge of whatever nature that Tax which would not have been imposed but for the fact that such the applicable holder or beneficial owner of a Note (1) is or was a resident, domiciliary or national of, engages or engaged in business in, maintains or maintained a permanent establishment in, or is or was physically present in, the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise had some other present or former connection with the Relevant Taxing Jurisdiction other than by reason of the mere ownership of, or receipt of payment under, such Note, (2) presented such Note for payment in the Series 18 Preferred Units or any Series 18 Preferred Units Relevant Taxing Jurisdiction, unless such Note could not have been presented for payment elsewhere, or (where presentation is required 3) presented such Note for payment) payment more than 30 days after the Relevant Date (date on which the payment in respect of such Note became due and payable or provided for, whichever is later, except to the extent that the holder would have been entitled to such amounts Additional Amounts if it had presented such units Note for payment on any day within such 30 that 30-day period). The “;
(ii) any estate, inheritance, gift, net worth, wealth, sale, use, gains, excise, value added transfer, personal property or similar Tax;
(iii) any Tax that is imposed or withheld by reason of the failure by the holder or beneficial owner of such Note to comply with any reasonable request by the Company addressed to the holder or beneficial owner within 90 days of such request (1) to provide information concerning the nationality, residence or identity of such holder or such beneficial owner or (2) to make any declaration or other similar claim or satisfy any information or reporting requirement, which is required or imposed by statute, treaty, regulation or administrative practice of the Relevant Date” meansTaxing Jurisdiction as a precondition to an exemption from, or reduction in, such Tax;
(iv) any Tax that is imposed other than by means of withholding in respect of payments made under a Note;
(v) any paymentTaxes imposed on or measured by overall net income (however denominated) or any branch profits tax;
(vi) any withholding or deduction imposed pursuant to current Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (or any amended or successor version thereof), any current or future regulations promulgated thereunder or official interpretations thereof, any intergovernmental agreements, treaties or conventions in connection therewith (or any laws, regulations or official administrative guidance implementing such agreements, treaties or conventions), and any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code of 1986, as amended (or any amended or successor version thereof); or
(vii) any combination of items (i), (ii), (iii), (iv), (v) and (vi) above. In addition, the Company will not pay Additional Amounts with respect to any holder who is a fiduciary or partnership or otherwise not the sole beneficial owner of such Note to the extent that a beneficiary, partner or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such Additional Amounts had it been the holder of such Note. In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to the Indenture in effect from time to time (“Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Company agrees to provide to the Trustee and the Paying Agent information about the parties and/or transactions (including any modification to the terms of such transactions) reasonably requested by the Trustee to allow the Trustee or the Paying Agent to determine whether it has Tax-related obligations under Applicable Law. The obligations described in this Section 5.2 will survive any termination, defeasance or discharge of the Indenture. Prior to the date on which the payment of any Additional Amounts are due, the Company will deliver to the Trustee an Officer’s Certificate stating that such payment first becomes due Additional Amounts will be payable on the applicable Payment Date and payable, but if setting forth the full amount of amounts so payable and any other information necessary to enable the moneys payable has not been received by the Trustee (or applicable Paying Agent on or prior Agent) to pay such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment Additional Amounts to holders and notice on the Payment Date. Any such Officer’s Certificate will be delivered at least two Business Days in advance of when the payments in question are required to that effect shall have been duly given be made (unless a shorter period of time is acceptable to the Series 18 Holders;Trustee in its reasonable discretion).
Appears in 1 contract
Sources: Third Supplemental Indenture (Arch Capital Group Ltd.)
Payment of Additional Amounts. i. The Partnership (a) All payments made by the Co-Issuers under or with respect to the Notes or by a Guarantor under or with respect to its Note Guarantee shall make all payments on the Series 18 Preferred Units be made free and clear of and without withholding or deduction at source for, for or on account of, of any present or future taxes, fees, duties, assessments or governmental charges of whatever nature Taxes imposed or levied by or on behalf of any Taxing Authority in any jurisdiction in which a Co-Issuer or any Guarantor is organized or is otherwise resident for tax purposes or any jurisdiction from or through which payment is made (each a “Relevant Taxing Jurisdiction”), unless such taxes, fees, duties, assessments Co-Issuer or governmental charges are Guarantor is required to be withheld withhold or deducted deduct Taxes by law or by the official interpretation or administration thereof.
(ib) the laws (If a Co-Issuer or any regulations Guarantor is required to withhold or rulings promulgated thereunder) deduct any amount for or on account of any Taxes imposed by a Relevant Taxing Jurisdiction for from any payment made under or with respect to the Series 18 Preferred Units Notes or (ii) an official position regarding the application, administration, interpretation or enforcement Note Guarantee of any such laws, regulations or rulings (including a holding by a court of competent jurisdiction or by a taxing authority in any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredGuarantor, the Partnership shallCo-Issuers or the relevant Guarantor, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Aas applicable, shall pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every the net payment made to such holders, amount received by each Holder (including Additional Amounts) after such withholding or deduction (including any shall equal the amount the Holder would have received if such withholding Taxes had not been withheld or deduction from such Additional Amounts)deducted; provided, shall be equal to the amounts the Partnership would otherwise have been required to pay had however, that no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account ofshall payable with respect to any Tax:
a(1) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed imposed, payable or due but for the fact that existence of any present or former connection between the Holder (or the beneficial owner of, or person ultimately entitled to obtain an interest in, such holder was Notes) and the Relevant Taxing Jurisdiction (including being a resident, domiciliary citizen or resident or national of, or engaged in carrying on a business or maintained maintaining a permanent establishment in, or was being physically present in, the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise had some connection with the Relevant Taxing Jurisdiction Jurisdiction) other than by reason the mere holding of the mere ownership of, Notes or enforcement of rights under such Note or under a Guarantee or the receipt of payment underpayments in respect of such Note or a Guarantee;
(2) that would not have been imposed, payable or due but for the Series 18 Preferred Units failure to satisfy any certification, identification or any Series 18 Preferred Units presented for payment other reporting requirements whether imposed by statute, treaty, regulation or administrative practice; provided, however, that the Co-Issuers have delivered a request to the Holder to comply with such requirements at least 30 days prior to the date by which such compliance is required;
(3) that would not have been imposed, payable or due if the presentation of Notes (where presentation is required required) for payment) more than payment has occurred within 30 days after the Relevant Date date such payment was due and payable or was duly provided for, whichever is later;
(except 4) subject to Section 4.20(e), that is an estate, inheritance, gift, sales, excise, transfer or personal property tax, assessment or charge; or
(5) as a result of a combination of the extent that foregoing clauses (1) through (4). In addition, Additional Amounts shall not be payable if, had the holder beneficial owner of, or Person ultimately entitled to obtain an interest in, such Notes been the Holder of the Notes, such beneficial owner would not have been entitled to such amounts if it had presented such units for the payment on of Additional Amounts by reason of clause (1), (2), (3), (4) or (5) above. In addition, Additional Amounts shall not be payable with respect to any day within such 30 day period). The “Relevant Date” means, Tax which is payable otherwise than by withholding from any payment under or in respect of the Notes or any paymentGuarantee.
(c) Whenever in this Indenture or the Notes there is mentioned, in any context, the date on which such payment first becomes due and payable, but if of amounts based upon the full principal amount of the moneys Notes or of principal, interest, or of any other amount payable has not been received under or with respect to any Note, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(d) The Co-Issuers shall provide the Trustee with documentation evidencing the payment of Additional Amounts and any other amounts payable pursuant to Section 4.20(e).
(e) The Co-Issuers and the Guarantors shall pay for any present or future stamp, court or documentary taxes, or any similar taxes, charges or levies which arise in any Relevant Taxing Jurisdiction from the execution, delivery or registration of the Notes, this Indenture or any other document or instrument referred to therein, or the receipt of any payments with respect to or enforcement of, the Notes or any Guarantee. The Co-Issuers and the Guarantors shall indemnify the Holders for any stamp taxes required to be paid in Argentina which arise from the execution, delivery or registration of this Indenture, the Notes and any other documents or instruments referred to herein or therein or the receipt of any payments with respect to or enforcement of, the Notes or any Guarantee.
(f) Notwithstanding anything to the contrary contained in this Indenture, the Co-Issuers and the Guarantors may, to the extent required to do so by law, deduct or withhold income or other similar taxes imposed by the Paying Agent on or prior United States of America from any payments under this Indenture; provided that the foregoing shall not limit the obligation of the Co-Issuers and the Guarantors to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;pay Additional Amounts as set forth in this Section 4.20.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership shall make all All payments on made by the Series 18 Preferred Units ----------------------------- Company, Tyco and any other Guarantor under or with respect to the Notes and the Guarantees will be made free and clear of and without withholding or deduction at source for, for or on account of, of any present or future taxes, feesduties, dutieslevies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing JurisdictionAuthority ("Taxes"), unless the Company, Tyco or such taxesGuarantor, feesas the case may be, duties, assessments or governmental charges are is required to be withheld withhold or deducted deduct Taxes by (i) law or by the laws (interpretation or administration thereof. In the event that the Company, Tyco or such Guarantor is required to so withhold or deduct any regulations amount for or rulings promulgated thereunder) on account of any Relevant Taxing Jurisdiction for Taxes from any payment made under or with respect to the Series 18 Preferred Units Notes or (ii) an official position regarding the applicationGuarantees, 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredas the case may be, the Partnership shallCompany, subject to Tyco or such Guarantor, as the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Acase may be, will pay to the Series 18 Holders such additional amounts (the “"Additional Amounts”") as distributions as may be necessary so that every the net payment made to such holders, amount received by each Holder of Notes (including Additional Amounts) after such withholding or deduction (including any will equal the amount that such withholding or deduction from Holder would have received if such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have Taxes had not been required to pay had be withheld or deducted; provided that no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account ofwill be payable with respect to a payment made to a Holder of Notes to the extent:
(a) that any tax, fee, duty, assessment or governmental charge of whatever nature that such Taxes would not have been so imposed but for the fact that existence of any present or former connection between such holder was a residentHolder and the Taxing Authority imposing such Taxes (other than the mere receipt of such payment, domiciliary acquisition, ownership or national ofdisposition of such Notes or the exercise or enforcement of rights under such Notes, the Guarantees or this Indenture);
(b) of any estate, inheritance, gift, sales, transfer, or engaged in business personal property Taxes imposed with respect to such Notes, except as otherwise provided herein;
(c) that any such Taxes would not have been so imposed but for the presentation of such Notes 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 by reason of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment Guarantees (where presentation is required required) for payment) payment on a date more than 30 days after the Relevant Date (date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the holder beneficiary or Holder thereof would have been entitled to such amounts if it Additional Amounts had the Notes or Guarantees been presented such units for payment on any day within date during such 30 30-day period; or
(d) that such Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar claim for exemption, if (x) the making of such declaration or claim is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 60 days prior to the first payment date with respect to which the Company, Tyco or such Guarantor shall apply this clause (d), the Company, Tyco or such Guarantor shall have notified all Holders of Notes in writing that they shall be required to provide such declaration or claim. The “Relevant Date” meansCompany, Tyco or such Guarantor, as the case may be, will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Authority in accordance with all applicable laws. The Company, Tyco or such Guarantor, as the case may be, will use its reasonable best efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Company, Tyco or such Guarantor, as the case may be, will, upon request, make available to the Holders of the Notes, within 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company, Tyco or such Guarantor or if, notwithstanding the Company's, Tyco's or such Guarantor's efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by the Company, Tyco or such Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Notes or Guarantees is due and payable, if the Company, Tyco or such Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company, Tyco or such Guarantor will deliver to the Trustee an Officers' Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to Holders of Notes on the payment date. In addition, the Company, Tyco or such Guarantor, as the case may be, will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in Luxembourg Bermuda or the United States or any political subdivision or taxing authority of or in the foregoing in respect of the creation, issue, offering, enforcement, redemption or retirement of the Notes or the Guarantees. The foregoing provisions shall survive any paymenttermination or the discharge of the Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Company, Tyco or such Guarantor, as the case may be, is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which such payment first Person becomes due and payablea successor to the Company, but if Tyco or such Guarantor, as the full amount of case may be, shall be substituted for the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full series of Notes was issued. Whenever in the Indenture, the Notes or the Guarantees there is mentioned, in any context, the payment of principal (and premium, if any), redemption price, interest or any other amount payable under or with respect to any Notes or Guarantees, such mention shall be deemed to include mention of such moneys having been so received and being available for the payment to holders and notice to that effect shall have been duly given of Additional Amounts to the Series 18 Holders;extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 1 contract
Sources: Supplemental Indenture (Tyco International LTD /Ber/)
Payment of Additional Amounts. i. The Partnership (a) All payments and deliveries made by the Company or any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Repurchase Price and the Fundamental Change Repurchase Price, if applicable), payments of interest and deliveries of ADSs (together with cash payments in lieu of any fractional ADSs) upon conversion, shall make all payments on the Series 18 Preferred Units free and clear of and be made without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of within any jurisdiction in which the Company or any successor to the Company is, for tax purposes, organized or resident or doing business in or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Partnership shall, subject Company or any successor to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, Company shall pay to the Series 18 Holders each Holder such additional amounts (the “Additional Amounts”) as distributions as may be necessary so to ensure that every the net payment made to such holders, amount received by the beneficial owner after such withholding or deduction (including and after deducting any such withholding or deduction from such taxes on the Additional Amounts), ) shall be equal to the amounts the Partnership that would otherwise have been required to pay received by such beneficial owner had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any ; provided that that no Additional Amounts shall be payable for or on account of:
a(1) any tax, fee, duty, assessment or other governmental charge of whatever nature that would not have been imposed but for for:
(A) the fact that existence of any present or former connection between the Holder or beneficial owner of such holder was Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments thereunder, including, without limitation, such Holder or beneficial owner being or having been a residentnational, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the resident of such Relevant Taxing Jurisdiction or any political subdivision treated as a resident thereof or otherwise being or having been physically present or engaged in a trade or business therein or having or having had some connection with a permanent establishment therein;
(B) the Relevant Taxing Jurisdiction other than by reason presentation of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment such Note (where in cases in which presentation is required for paymentrequired) more than 30 days after the later of the date on which the payment of the principal of (including the Repurchase Price or Fundamental Change Repurchase Price, if applicable), premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for; or
(C) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Date (except Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the holder Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(2) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(3) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes; or
(4) in respect of any withholding or deduction imposed pursuant to Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) or otherwise imposed pursuant to Sections 1471 through 1474 of the Code, any regulations or agreements thereunder, any official interpretations thereof, or any law implementing an intergovernmental approach thereto (collectively, “FATCA”); or
(5) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (1), (2), (3) or (4); or
(6) with respect to any payment of the principal of (including the Repurchase Price or Fundamental Change Repurchase Price, if applicable), premium, if any, and interest on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such amounts if it Additional Amounts had presented such units for that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with a cash payment on any day within such 30 day period). The “Relevant Date” means, in respect lieu of any payment, the date on which such payment first becomes due and payable, but if the full amount fractional ADSs) upon conversion of the moneys Notes or the payment of principal of (including the Repurchase Price or Fundamental Change Repurchase Price, if applicable), and any premium or interest on, any Note or any amount payable has not been received by the Paying Agent on or prior with respect to such due dateNote, it means shall be deemed to include any Additional Amounts, unless the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice context requires otherwise, that may be payable with respect to that effect amount under the obligations referred to in this Section 4.07.
(c) The foregoing obligations shall have been duly given to the Series 18 Holders;survive termination or discharge of this Indenture.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership 10.7.1 All payments in respect of the Securities shall make all payments on the Series 18 Preferred Units free and clear of and be made without withholding or deduction at source for, or on account of, for any present or future taxes, fees, duties, assessments or other governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or on behalf of the Cayman Islands, Brazil or any Relevant Taxing JurisdictionSuccessor Jurisdiction or any authority therein or thereof having power to tax (“Foreign Taxes”), unless except to the extent that such taxes, fees, duties, assessments or governmental charges Foreign Taxes are required by the Cayman Islands, Brazil, such Successor Jurisdiction or any such authority to be withheld or deducted by (i) deducted. In the laws (or any regulations or rulings promulgated thereunder) event of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredfor any Foreign Taxes, the Partnership shallCompany or the Guarantor, subject as the case may be, shall make such deduction or withholding, make payment of the amount so withheld to the limitations appropriate governmental authority and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be are necessary so to ensure that every the net payment made to amounts received by the Holders of such holdersSecurities after such withholding or deduction equals the respective amounts of principal, after premium and interest which would have been receivable in respect of such Securities had no such withholding or deduction (including for any Foreign Taxes payable in respect of Additional Amounts) been required, except that no such Additional Amounts shall be payable with respect to any payment on a Security:
(i) to, or to a third party on behalf of, a Holder who is liable for any such withholding taxes, duties, assessments or deduction from other governmental charges in respect of such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
Security by reason of (a) a connection between the Holder and the Cayman Islands or Brazil other than the mere holding of such Security and the receipt of payments with respect to such Security or (b) failure by the Holder to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with the Cayman Islands, Brazil or a Successor Jurisdiction, or applicable political subdivision or authority thereof or therein having power to tax, feeof such Holder, dutyif compliance is required by such jurisdiction, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder 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 or authority thereof or otherwise had some connection with therein having power to tax, as a precondition to exemption from, or reduction in the Relevant Taxing Jurisdiction other than by reason of the mere ownership rate of, the tax, assessment or receipt other governmental charge and the Company or the Guarantor, as applicable, has given the Holders at least 30 days’ notice that Holders will be required to provide such certification, identification or other requirement;
(ii) in respect of payment underany such taxes, the Series 18 Preferred Units duties, assessments or any Series 18 Preferred Units presented for payment other governmental charges with respect to a Security surrendered (where presentation if surrender is required for paymentrequired) more than 30 days after the Relevant Date (date on which such payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the holder Holder of such Security would have been entitled to such amounts if it had presented Additional Amounts on surrender of such units Security for payment on any the last day within of such 30 30-day period). The “Relevant Date” means;
(iii) in respect of estate, inheritance, gift, sales, transfer, personal property or similar tax, assessment or governmental charge imposed with respect to a Security;
(iv) in respect of any paymenttax, assessment or other governmental charge payable otherwise than by deduction or withholding from payments of principal of or interest or premium on any series of Securities or by direct payment by the Company or the Guarantor in respect of claims made against the Company or the Guarantor;
(v) where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to any European Union Directive on the taxation of savings implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 or any law implementing or complying with, or introduced in order to conform to, such directive; or
(vi) in respect of any combination of the above. For purposes of the provisions described in this Section 10.7.1, the term “Holder” of any Security means the direct nominee of any beneficial owner of such Security, which holds such beneficial owner’s interest in such Security. Notwithstanding the foregoing, the limitations on the Company’s or the Guarantor’s obligation to pay Additional Amounts set forth in clause (i)(b) above shall not apply if the provision of information, documentation or other evidence described in such clause (i)(b) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Security (taking into account any relevant differences between U.S. and Cayman Islands or Brazilian law, regulation or administrative practice) than comparable information or other reporting requirements imposed under U.S. tax law (including tax treaties between the United States and the Cayman Islands or Brazil), regulations (including proposed regulations) and administrative practice. The Company or the Guarantor, as the case may be, shall promptly provide the Trustee with documentation, if any, (which may consist of certified copies of such documentation) reasonably satisfactory to the Trustee evidencing the payment of Foreign Taxes in respect of which the Company or the Guarantor has paid any Additional Amounts. Copies of such documentation shall be made available to the Holders of the Securities or the Paying Agent, as applicable, upon request therefor. In respect of the Securities issued hereunder, at least 10 days prior to the first date of payment of interest on which the Securities and at least 10 days prior to each date, if any, of payment of principal or interest thereafter if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Company and the Guarantor shall furnish the Trustee and each Paying Agent with an Officers’ Certificate instructing the Trustee and such Paying Agent as to whether such payment first becomes of principal of or any interest or premium on such Securities shall be made without deduction or withholding for or on account of any tax, duty, assessment or other governmental charge. If any such deduction or withholding shall be required by the Cayman Islands or Brazil or any Successor Jurisdiction or any authority therein having power to tax, then such certificate shall specify, by country, the amount, if any, required to be deducted or withheld on such payment to Holders of such Securities, and the Company or the Guarantor, as the case may be, (if payment is then due under the Guarantees) shall pay or cause to be paid to the Trustee or such Paying Agent Additional Amounts, if any, required by this Section 10.7. The Company and payablethe Guarantor agree to indemnify the Trustee and each Paying Agent for, but if 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 them in reliance on any Officers’ Certificate furnished pursuant to this Section 10.7, the full amount obligation of the moneys payable has not been Company and the Guarantor to so indemnify being joint and several.
10.7.2 The Company or the Guarantor, as the case may be, shall pay all stamp, issue, registration, documentary or other similar duties, if any, which may be imposed by the Cayman Islands or Brazil or any other governmental entity or political subdivision therein or thereof, or any taxing authority of or in any of the foregoing, with respect to the Indenture or the issuance of the Securities or the Guarantees.
10.7.3 The Company or the Guarantor, as the case may be, shall provide each Paying Agent and any withholding agent under relevant tax regulations with copies of each certificate received by the Company or the Guarantor from a Holder of a Security pursuant to the text of such Security. Each such Paying Agent and withholding agent shall retain each such certificate received by it for as long as any Security is outstanding and in no event for less than four years after its receipt, and for such additional period thereafter, as set forth in an Officers’ Certificate, as such certificate may become material in the administration of applicable tax laws.
10.7.4 In the event that Additional Amounts actually paid with respect to the Securities pursuant to the preceding paragraphs are based on rates of deduction or prior withholding of withholding taxes in excess of the appropriate rate applicable to such due date, it means the first date on which the full amount Holder of such moneys having been so received Securities, and, as a result thereof, such Holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Securities, be deemed to have assigned and being available transferred all right, title, and interest to any such claim for payment to holders and notice to that effect shall have been duly given a refund or credit of such excess to the Series 18 Holders;Company or the Guarantor. However, by making such assignment, the Holder makes no representation or warranty that the Company or the Guarantor will be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
10.7.5 All references in this Indenture and the Securities to principal, premium or interest in respect of any Security shall be deemed to mean and include all Additional Amounts, if any, payable in respect of such principal, premium or interest, unless the context otherwise requires, and express mention of the payment of Additional Amounts in any provision hereof shall not be construed as excluding reference to Additional Amounts in those provisions hereof where such express mention is not made. All references in this Indenture and the Securities to principal in respect of any Security shall be deemed to mean and include any Redemption Price or Repurchase Price payable in respect of such Security pursuant to any redemption or repurchase right hereunder (and all such references to the Stated Maturity of the principal in respect of any Security shall be deemed to mean and include the Redemption Date or Repurchase Date with respect to any such Redemption Price or Repurchase Price), and all such references to principal, premium, interest or Additional Amounts shall be deemed to mean and include any amount payable in respect hereof pursuant to Section 10.7, and express mention of the payment of any Redemption Price or Repurchase Price, or any such other amount in any provision hereof shall not be construed as excluding reference to the payment of any Redemption Price or Repurchase Price, or any such other amounts in those provisions hereof where such express reference is not made.
Appears in 1 contract
Sources: Indenture (Embraer - Empresa Brasileira De Aeronautica S.A.)
Payment of Additional Amounts. i. (a) The Partnership shall make all payments on the Series 18 Preferred Units free and clear of and without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership Issuer shall, subject to the exceptions and limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Abelow, pay to the Series 18 Holders a holder not domiciled in Peru of any Note as additional interest, such additional amounts (the “Additional Amounts”) as distributions as may be necessary so in order that every net payment made to such holders, by the Issuer or a Paying Agent of the principal of and interest on the Note and any other amounts payable on the Note after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
a) of any present or future tax, fee, duty, assessment or governmental charge (and any fines, penalties or interest related thereto) (collectively, “Taxes”) imposed or levied by Peru or any political subdivision or taxing authority thereof or therein, shall not be less than the amount provided for in the Note to be then due and payable under the Notes.
(b) However, the obligation by the Issuer to pay Additional Amounts shall not apply:
(i) to any withholding or deduction that is imposed at a rate that exceeds 4.99% in the case of whatever nature a holder that is a natural person;
(ii) to any present or future Tax that would not have been so imposed but for: (A) the existence of any present or former connection between the holder (or between a fiduciary, settlor, beneficiary, member or shareholder of the holder, if the holder is an estate, a trust, a partnership, a limited liability company or a corporation) and Peru and its possessions (other than the mere receipt of such payment or the ownership or holding of such Note by the relevant holder) including, without limitation, the holder (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident of Peru or being or having been engaged in a trade or business or present in Peru or having, or having had, a permanent establishment in Peru; or (B) the presentation by the holder of any Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(iii) to any estate, inheritance, gift, sales, transfer, capital gains, excise or personal property tax or any similar tax, assessment or governmental charge;
(iv) to any Tax that is payable otherwise than by withholding or deduction from payments of principal or interest in respect of any Note;
(v) to any Tax that would not have been imposed but for the fact failure to comply with certification, information or other reporting requirements concerning the nationality, residence or identity of the holder or beneficial owner of that Note, if compliance is required by statute or by regulation of Peru or of any political subdivision or taxing authority thereof or therein as a precondition to relief or exemption from the Tax; provided that the Issuer has, at least 30 days prior to the application of this clause, notified all holders of Notes that some or all holders of Notes shall be required to comply with such holder was requirement;
(vi) to any withholding or deduction that is imposed on a residentpayment to an individual and that is required to be made pursuant to the European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 or any law implementing or complying with, domiciliary or national introduced in order to conform to such Directive;
(vii) to any Tax required to be withheld by any paying agent from any payment of the principal of, or engaged interest on any Note, if such Tax results from the presentation of any Note for payment and the payment can be made without such withholding or deduction by the presentation of the Note for payment by at least one other Paying Agent; or
(viii) in business the case of any combination of the items listed above.
(c) In addition, Additional Amounts shall not be paid with respect to any payment on a Note to a holder who is a fiduciary, a partnership, a limited liability company or maintained a permanent establishment or was physically present in, other than the Relevant Taxing Jurisdiction sole beneficial owner of that payment to the extent that payment would be required by the laws of Peru (or any political subdivision thereof thereof) to be included in the income, for tax purposes, of a beneficiary or otherwise settlor with respect to the fiduciary, a member of that partnership, an interest holder in a limited liability company or a beneficial owner who would not have been entitled to the Additional Amounts had some connection that beneficiary, settlor, member or beneficial owner been the holder.
(d) The Issuer shall use commercially reasonable efforts to provide the Trustee, upon written request, with the Relevant Taxing Jurisdiction other than by reason a certificate from an internal accountant of the mere ownership ofIssuer, stamped by the relevant tax authority, evidencing any payment of Taxes in respect of which the Issuer has withheld or deducted, or receipt paid any Additional Amounts. Copies of payment undersuch documentation shall be made available to the holders of the Notes or the Paying Agents, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment as applicable, upon request therefor.
(where presentation is required for paymente) more than 30 days after the Relevant Date (except The Issuer undertakes that, to the extent that it is subject to the holder would have been European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000, the Issuer shall use its reasonable efforts to maintain a paying agent in a European Union Member State that shall not be obliged to withhold or deduct tax pursuant to the Directive.
(f) All references in this Indenture to principal, interest, and other amounts payable hereunder shall be deemed to include references to any Additional Amounts payable under this Section with respect to such principal, interest or other amounts. The foregoing obligations shall survive any termination or discharge of the Notes and this Indenture.
(g) If the Trustee or a Noteholder is entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in an exemption from or reduction of Taxes with respect of any paymentto payments under this Indenture, the date on which Trustee or such payment first becomes due and payableNoteholder (as applicable) shall provide to the Issuer, but if the full amount of the moneys payable has not been received as reasonably requested by the Paying Agent on Issuer (who shall provide the Trustee or prior the Noteholder, upon written request, as the case may be, the relevant documentation, forms and instructions prescribed by applicable law), such documentation as will permit payments under this Indenture to be made without withholding or at a reduced rate; provided, however, if any documentation or form referred to in this subsection (g) required the disclosure of information that the Trustee or the Noteholder, as the case may be, reasonably considers to be confidential, the Trustee or such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and Noteholder shall give notice to that effect shall have been duly given thereof to the Series 18 Holders;Issuer and shall not be obligated to include in such documentation or form such confidential information.
Appears in 1 contract
Sources: Indenture (Telefonica Del Peru Saa)
Payment of Additional Amounts. i. The Partnership (a) All payments by the Company in respect of the Notes or the Guarantors in respect of the Note Guaranty shall make all payments on the Series 18 Preferred Units free and clear of and be made without withholding or deduction at source for, for or on account of, of any present or future taxes, fees, duties, assessments assessments, or other governmental charges of whatever nature imposed or levied by or on behalf of the Cayman Islands, and/or Brazil, or any Relevant Taxing Jurisdictionauthority therein or thereof in the case of payments under the Notes or any other jurisdiction in which any Guarantor is organized having power to tax in the case of payments under the Note Guaranty, unless the Company or the Guarantors are compelled by law to deduct or withhold such taxes, feesduties, assessments, or governmental charges. In such event, the Company or the Guarantors shall make such deduction or withholding, make payment of the amount so withheld to the appropriate governmental authority and pay such Additional Amounts as may be necessary to ensure that the net amounts receivable by Holders of Notes after such withholding or deduction shall equal the respective amounts of principal and interest which would have been receivable in respect of the Notes in the absence of such withholding or deduction (“Additional Amounts”). No such Additional Amounts shall be payable:
(i) to, or to a third party on behalf of, a Holder who is liable for such taxes, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) in respect of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every net payment made to such holders, after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
a) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder 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 Note by reason of the mere ownership ofexistence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of such Holder, if such Holder is an estate, a trust, a partnership, or a corporation) and the Cayman Islands, and/or Brazil, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein, other than the mere holding of the Note or enforcement of rights and the receipt of payment under, payments with respect to the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment Note;
(where presentation ii) in respect of Notes surrendered (if surrender is required for paymentrequired) more than 30 days after the Relevant Date (except to the extent that payments under such Note would have been subject to withholdings and the holder Holder of such Note would have been entitled to such amounts if it had presented Additional Amounts, on surrender of such units Note for payment on the last day of such period of 30 days;
(iii) where such Additional Amount is imposed on a payment to an individual and is required to be made pursuant to any day within law implementing or complying with, or introduced in order to conform to, any European Union Directive on the taxation of savings;
(iv) with respect to any taxes withheld, deducted or imposed on a payment to an individual and which are required to be made pursuant to European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of 26 and 27 November 2000 on the taxation of savings income or any law implementing or complying with or introduced in order to conform to, such Directive;
(v) to, or to a third party on behalf of, a Holder who is liable for such taxes, duties, assessments or other governmental charges by reason of such Holder’s failure to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with the Cayman Islands, or Brazil, or a successor jurisdiction or applicable political subdivision or authority thereof or therein having power to tax, of such Holder, if (1) compliance is required by such jurisdiction, or any political subdivision or authority thereof or therein having power to tax, as a precondition to, exemption from, or reduction in the rate of, the tax, assessment or other governmental charge and (2) the Company has given the Holders at least 30 day period). The “Relevant Date” meansdays’ notice that Holders shall be required to provide such certification, identification or other requirement;
(vi) in respect of any paymentestate, inheritance, gift, sales, transfer, capital gains, excise or personal property or similar tax, assessment or governmental charge;
(vii) in respect of any tax, assessment or other governmental charge which is payable other than by deduction or withholding from payments of principal of or interest on the date on which such Note or by direct payment first becomes due and payable, but if by the full amount Company or the Guarantors in respect of claims made against the Company or the Guarantors; or
(viii) in respect of any combination of the moneys payable has not been received above.
(b) No Additional Amounts shall be paid with respect to any payment on a Note to a Holder who is a fiduciary, a partnership, a limited liability company or other than the sole beneficial owner of that payment to the extent that payment would be required by the Paying Agent laws of the Cayman Islands, Brazil or any political subdivision thereof to be included in the income, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership, an interestholder in a limited liability company or a beneficial owner who would not have been entitled to the Additional Amounts had that beneficiary, settlor, member or beneficial owner been the Holder.
(c) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above, neither the Company nor the Guarantors shall be required to make a payment with respect to any tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein.
(d) In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or prior withholding of withholding taxes in excess of the appropriate rate applicable to such due date, it means the first date on which the full amount Holder of such moneys having been so received Notes, and, as a result thereof such Holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, be deemed to have assigned and being available transferred all right, title, and interest to any such claim for payment a refund or credit of such excess to holders and notice the Company.
(e) Any reference in this Indenture or the Notes to principal, interest or any other amount payable in respect of the Notes by the Company or the Note Guaranty by the Guarantors shall be deemed also to refer to any Additional Amount, unless the context requires otherwise, that may be payable with respect to that effect shall have been duly given amount under the obligations referred to the Series 18 Holders;in this Section.
Appears in 1 contract
Sources: Indenture (Cosan Ltd.)
Payment of Additional Amounts. i. The Partnership (a) All payments made by the Company or the Guarantor (or any successor to any of them) under, or with respect to, the Notes shall make all payments on the Series 18 Preferred Units be made free and clear of of, and without withholding or deduction at source for, for or on account of, of any present or future taxestax, feesduty, duties▇▇▇▇, assessments impost, assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of any Relevant Taxing Jurisdictiontaxing authority (collectively, “Taxes”), unless such taxeswithholding or deduction is required by applicable law or by the official interpretation or administration thereof.
(b) If any deduction or withholding for, feesor on account of, dutiesany Taxes is imposed or levied by or on behalf of Mexico (or any taxing authority, assessments jurisdiction or governmental charges are required to be withheld political subdivision thereof), the United States or deducted by of any jurisdiction (i) in which the laws (Company or the Guarantor, or any regulations successor to any of them, is organized or rulings promulgated thereunder) resident for tax purposes (and, in the case of any Relevant Taxing Jurisdiction for successor, wherein such successor assumes the Series 18 Preferred Units obligations of the Notes, the guarantees and the indenture following a merger, consolidation or transfer, lease or conveyance of substantially all of the assets and properties of the Company or the Guarantor) or (ii) an official position regarding through which payments on the applicationNotes are made (each of Mexico, administration, interpretation or enforcement of the United States and any such lawsjurisdiction, regulations or rulings (including a holding by a court of competent jurisdiction or by a taxing authority in any “Relevant Taxing Jurisdiction). If a withholding ”) the Company or deduction at source is requiredthe relevant Guarantor or successor entity, the Partnership shallas applicable, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, shall pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so in order that every the net payment made to amounts received in respect of such holders, payments by each Holder after such withholding or deduction (including any shall equal the respective amounts that would have been received by such Holder in respect of such payments in the absence of such withholding or deduction from such Additional Amounts)deduction; provided, however, that neither the Company nor the Guarantor (nor any paying agent) nor any successor to any of them shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts to any Holder or beneficial owner of Notes for or on account of:of any of the following (“Excluded Taxes”):
a(i) any taxTaxes imposed solely because at any time there is or was a connection between the Holder or beneficial owner of Notes, feeas the case may be, dutyand a Relevant Taxing Jurisdiction, assessment including such Holder or governmental charge beneficial owner being or having been a citizen or resident of whatever nature such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business or having had a permanent establishment therein (other than the mere purchase of the Notes, or receipt of a payment or the ownership or holding of the Notes);
(ii) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Tax imposed with respect to the Notes;
(iii) any Taxes imposed solely because the Holder or any other person fails to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection of the Holder or any beneficial owner of the Notes with a Relevant Taxing Jurisdiction if compliance is required by the applicable law of such Relevant Taxing Jurisdiction or an applicable income tax treaty as a precondition to exemption from, or reduction in the rate of, such Tax (including, but not limited to, the failure to provide U.S. Internal Revenue Service, Form W-8BEN-E, W-8BEN, W-8ECI or any subsequent versions thereof), and the Company has given the Holders at least thirty (30) days’ notice that Holders shall be required to provide such information and identification;
(iv) any Taxes payable otherwise than by deduction or withholding from payments on the Notes;
(v) any Taxes that would have been avoided by presenting for payment (where presentation is required) the relevant Note to another paying agent;
(vi) any Taxes with respect to such Notes presented for payment more than thirty (30) days after the date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the Holders of such Notes would have been entitled to such Additional Amounts on presenting such Notes for payment on any date during such 30-day period;
(vii) any payment on the Notes to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Notes;
(viii) any Taxes withheld or deducted on or in respect of any Note pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) (commonly referred to as “FATCA”), any treaty, law, regulation or other official guidance enacted by the United States implementing FATCA, any agreement between the Company and the United States implementing FATCA pursuant to Section 1471(b)(1) of the Code or any law of any jurisdiction implementing an intergovernmental approach to FATCA;
(ix) any Taxes imposed by the United States that would not have been imposed but for the fact that such holder was beneficial owner or the Holder being or having been (a) a resident, domiciliary or national of“10-percent shareholder” (as defined in section 871(h)(3) of the Code, or engaged any successor provision) of the Guarantor or (b) a bank whose receipt of interest on a Note is described in business section 881(c)(3)(A) of the Code or maintained any successor provision;
(x) any Taxes imposed by the United States that would not have been imposed but for the beneficial owner or the Holder being or having been a permanent establishment non-U.S. or was physically present inU.S. personal holding company, a passive foreign investment company or a controlled foreign corporation each as defined for U.S. federal income tax purposes, a corporation that has accumulated earnings to avoid United States federal income tax or a private foundation or other tax-exempt organization; or
(xi) any combination of any of the foregoing.
(c) The provisions of Section 4.04(b) of this First Supplemental Indenture shall survive any termination or discharge of the Indenture. The Company or the Guarantor, as applicable, shall (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Company or the Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any political subdivision thereof Taxes so deducted or otherwise had some connection with the withheld from each Relevant Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within thirty (30) days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Company or the Guarantor, or successor entity, as applicable, furnish such other than documentation that provides reasonable evidence of such payment by reason the Company or the Guarantor, or successor entity, as applicable.
(d) The exception to the obligations of the mere ownership Company or the Guarantor or successor entity, as applicable, to pay Additional Amounts pursuant to this Section 4.04 shall not apply if (i) the provision of information, documentation or other evidence described in such clause (iii) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulation (including proposed regulations) and administrative practice, or (ii) Article 166, Section II, paragraph a), of the Mexican Income Tax Law (Ley del Impuesto Sobre la Renta) (or a substitute or equivalent provision) is in effect, unless (A) the provision of the information, documentation or other evidence described in such clause (iii) is expressly required by the applicable Mexican laws and regulations in order to apply Article 166, Section II, paragraph a), of the Mexican Income Tax Law (or substitute or equivalent provision), (B) the Company cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican laws and regulations on its own through reasonable diligence and (C) the Company would not otherwise meet the requirements for application of the applicable Mexican laws and regulations.
(e) In addition, this Section 4.04 does not require, and shall not be construed to require, that any Holder, including any non-Mexican pension fund, retirement fund, tax-exempt organization or financial institution, register with the Mexican Tax Management Service (Servicio de Administración Tributaria) or the Mexican Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) to establish eligibility for an exemption from, or a reduction of, Mexican withholding taxes.
(f) Any reference herein and the Indenture to principal, premium, interest or receipt any other amount payable in respect of the Notes by the Company or the Guarantor or successor entity, as applicable, shall be deemed also to refer to any Additional Amounts that may be payable with respect to that amount under the obligations referred to herein. Payment of any Additional Amounts with respect to interest shall be considered as an interest payment under, or with respect to, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment Notes.
(where presentation is required for paymentg) more than 30 days after In the Relevant Date (except event that Additional Amounts actually paid with respect to the extent Notes pursuant to Section 4.04 are based on rates of deduction or withholding of Taxes in excess of the appropriate rate applicable to the Holder or beneficial owner of such Notes, and as a result thereof such Holder or beneficial owner is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder or beneficial owner shall, by accepting such Notes, and without any further action, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to the Company or the Guarantor or successor entity, as applicable. However, by making such assignment, the Holder makes no representation or warranty that the holder would have been Company or the Guarantor or successor entity, as applicable, shall be entitled to receive such amounts if it had presented such units claim for payment on any day within such 30 day period). The “Relevant Date” means, in a refund or credit and incurs no other obligation with respect of any payment, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;thereto.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership shall make all (a) All payments made by or on behalf of the Series 18 Preferred Units Company under or with respect to the Notes, or by or on behalf of any Guarantor under or with respect to any Note Guarantee, are required to be made free and clear of and without withholding or deduction at source for, for or on account of, of any present or future taxestax, feesduty, dutieslevy, assessments impost, assessment or other governmental charges of whatever nature charge (including penalties, additions to tax, interest and other liabilities related thereto) (here- inafter referred to as “Taxes”) imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (government of Canada or any regulations province or rulings promulgated thereunderterritory thereof, (ii) any other jurisdiction in which the Company or any Guarantor is organized or is otherwise do- ing business in or resident for tax purposes or (iii) any other jurisdiction from or through which any payment is made on behalf of the Company or any Guarantor (including the jurisdiction of any paying agent) or, in each case, any agency, authority or political subdivision thereof or therein (each, a “Relevant Taxing Jurisdiction”), unless withholding or deduction of Taxes is then required by law or by the interpretation or administration thereof.
(b) If the Company or any Guarantor (each such person, a “Payor”) or any other applicable withhold- ing agent is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction for the Series 18 Preferred Units from any payment made under 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject with respect to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) Notes or any Note Guarantee, such Payor will be required to this Part XIX of Schedule A, pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every the net payment made to such holders, amount re- ceived by each beneficial owner of Notes after such withholding or deduction (including any such withholding or deduction from such deduc- tion attributable to the Additional Amounts)) will not be less than the amount such beneficial owner of Notes would have received if such Taxes (including Taxes on any Additional Amounts) had not been withheld or deducted; pro- vided, shall be equal to however, that the amounts the Partnership would otherwise have been required foregoing obligations to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account ofdo not apply to:
a(i) any tax, fee, duty, assessment Tax imposed under the Income Tax Act (Canada) because the holder or governmental charge beneficial owner of whatever nature Notes does not deal at arm’s length (within the meaning of the Income Tax Act (Canada)) with the applicable Payor at the time of the payment;
(ii) any Tax imposed under the Income Tax Act (Canada) because any holder or beneficial owner of Notes is a “specified shareholder” (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Company at the time of payment or does not deal at arm’s length for the purposes of the Income Tax Act (Canada) with a “specified shareholder” of the Company at the time of payment;
(iii) any Tax that would not have been so imposed by a Relevant Taxing Jurisdiction but for the fact that existence of any present or former connection between the relevant holder or beneficial owner of Notes and such Relevant Taxing Jurisdiction (including such holder was or beneficial owner being or having been a residentcitizen, domiciliary resident or national ofthereof, or being or having been engaged in a trade or business or maintained maintaining a permanent establishment therein), other than any connection arising solely from the acquisition, ownership or was physically present indisposition of the Notes, the Relevant Taxing Jurisdiction receipt of payments under or in respect of such Notes or any political subdivision thereof Note Guaran- tee and/or the enforcement of rights under or otherwise had some connection with respect to the Relevant Taxing Jurisdiction other than by reason of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units Notes or any Series 18 Preferred Units presented for payment Note Guarantee;
(iv) any Tax, to the extent such Tax would not have been imposed if the presentation of a Note (where presentation is required required) for payment) more than payment had occurred within 30 days after the Relevant Date date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the holder or beneficial owner would have been entitled to Additional Amounts had the Note been presented on the last day of such amounts 30-day period);
(v) the extent relating to Taxes imposed by reason of the holder’s or beneficial owner’s fail- ure, following the Company’s written request addressed to the holder or beneficial owner at least 30 days before the relevant date on which payment under or with respect to the Note or any Note Guarantee is due and payable, to comply with any certification, documentation, information or other evidence concerning such holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction if it had presented compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to exemption from, or a reduction in the rate of deduction or withholding of, such units for Taxes to which such holder or beneficial owner is entitled, but in each case only to the extent that the holder or bene- ficial owner, as the case may be, is legally eligible to provide such certification;
(vi) any estate, inheritance, gift, sales, transfer or similar Taxes; and
(vii) any combination of any of items (i) through (vi) above (any such Tax in respect of which Additional Amounts are payable, an “Indemnified Tax”).
(c) Additional Amounts shall not be payable with respect to any payment on any Note to a holder or beneficial owner who is a fiduciary or partnership or other than the sole beneficial owner of such Note to the extent that a beneficiary or settlor with respect to such fiduciary, or a member of such partnership or a beneficial owner thereof would not have been entitled to receive a payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner received directly its beneficial or distributive share of such payment.
(d) The applicable withholding agent will make any required withholding or deduction and remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Com- pany, if it or any of the Guarantors is the applicable withholding agent, will promptly provide the Trustee (or to a holder, upon request) with official receipts or other documentation evidencing the payment of the Taxes with respect to which Additional Amounts are paid.
(e) If a Payor is or will become obligated to pay Additional Amounts under or with respect to any payment made on the Notes or its Note Guarantee, at least 30 days prior to the date of such payment, the Company will deliver to the Trustee an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount so payable and such other information necessary to enable the Trustee to pay Additional Amounts to holders of the Notes on the relevant payment date (unless the obligation to pay Additional Amounts arises after the 30th day within such 30 day periodprior to that payment date, in which case the Company shall notify the Trustee promptly thereafter). The “Trustee will be entitled to rely solely upon such Officer’s Certificate as conclusive proof that such payments are necessary. The Company will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts.
(f) Whenever in this Indenture there is mentioned in any context:
(i) the payment of principal or premium (if any);
(ii) redemption prices or purchase prices in connection with a redemption or purchase of Notes;
(iii) interest; or
(iv) any other amount payable on or with respect to any of the Notes or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts pursuant to this Section 4.21 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(g) The Company and the Guarantors will, jointly and severally, indemnify and hold harmless each holder and beneficial owner of the Notes for the amount of (a) any Indemnified Taxes (including for greater certain- ty taxes payable pursuant to Regulation 803 of the Income Tax Regulations (Canada)) levied or imposed by a Rele- vant Taxing Jurisdiction and paid by such holder or beneficial owner as a result of payments made under or with respect to the Notes or any Note Guarantee and (b) Taxes imposed with respect to any reimbursements under clause (a) or this clause (b), so that the net amount received by such beneficial owner after such reimbursement will not be less than the net amount such beneficial owner would have received if the Taxes giving rise to the reimbursement described in clauses (a) and/or (b) had not been imposed.
(h) The Company and the Guarantors will pay any present or future stamp, issue, registration, court or documentary taxes or any other excise, property or similar Taxes that arise in any Relevant Date” meansTaxing Jurisdiction from the execution, issuance, delivery, enforcement or registration of the Notes, the Note Guarantees, this Indenture or any other document or instrument in relation thereof, or in respect of any paymentpayments under or with respect to the Notes or any Note Guarantees and will agree to indemnify the holders of the Notes for any such amounts (including penalties, additions to tax, interest and other liabilities related thereto) paid by such holders of the date on Notes.
(i) The obligations in this Section 4.21 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor Person to the Company or any Guarantor is organized or is otherwise doing business or resident for tax purposes or any jurisdiction from or through which such Person (or its paying agent) makes any payment first becomes due and payable, but if the full amount of the moneys payable has not been received by the Paying Agent on under or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given with respect to the Series 18 Holders;Notes or any Note Guarantee and, in each case, any agency, authority or political subdivision thereof or therein.
Appears in 1 contract
Sources: Indenture
Payment of Additional Amounts. i. The Partnership shall make all All payments on made by the Series 18 Preferred Units Issuer, Tyco International and any other Guarantor under or with respect to the Securities and the Guarantees will be made free and clear of and without withholding or deduction at source for, for or on account of, of any present or future taxes, feesduties, dutieslevies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing JurisdictionAuthority ("Taxes"), unless the Issuer, Tyco International or such taxesGuarantor, feesas the case may be, duties, assessments or governmental charges are is required to be withheld withhold or deducted deduct Taxes by (i) law or by the laws (interpretation or administration thereof. In the event that the Issuer, Tyco International or such Guarantor is required to so withhold or deduct any regulations amount for or rulings promulgated thereunder) on account of any Relevant Taxing Jurisdiction for Taxes from any payment made under or with respect to the Series 18 Preferred Units Securities or (ii) an official position regarding the applicationGuarantees, 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredas the case may be, the Partnership shallIssuer, subject to Tyco International or such Guarantor, as the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Acase may be, will pay to the Series 18 Holders such additional amounts (the “"Additional Amounts”") as distributions as may be necessary so that every the net payment made to such holders, amount received by each Holder of Securities (including Additional Amounts) after such withholding or deduction (including any will equal the amount that such withholding or deduction from Holder would have received if such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have Taxes had not been required to pay had be withheld or deducted; provided that no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account ofwill be payable with respect to a payment made to a Holder of Securities to the extent:
(a) that any tax, fee, duty, assessment or governmental charge of whatever nature that such Taxes would not have been so imposed but for the fact that existence of any present or former connection between such holder was a residentand the Taxing Authority imposing such Taxes (other than the mere receipt of such payment, domiciliary acquisition, ownership or national ofdisposition of such Securities or the exercise or enforcement of rights under such Securities, the Guarantees or this Indenture);
(b) of any estate, inheritance, gift, sales, transfer, or engaged in business or maintained a permanent establishment or was physically present inpersonal property Tax imposed with respect to such Securities, except as otherwise provided herein;
(c) that any such Taxes would not have been so imposed but for the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise had some connection with the Relevant Taxing Jurisdiction other than by reason presentation of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment such Securities (where presentation is required required) for payment) payment on a date more than 30 days after the Relevant Date (date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the holder beneficiary or Holder thereof would have been entitled to such amounts if it Additional Amounts had the Securities been presented such units for payment on any day within date during such 30 30-day period; or (d) that such Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar claim for exemption, if (x) the making of such declaration or claim is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 60 days prior to the first payment date with respect to which the Issuer, Tyco International or such Guarantor shall apply this clause (d), the Issuer, Tyco International or such Guarantor shall have notified all Holders of Securities in writing that they shall be required to provide such declaration or claim. The “Relevant Date” meansIssuer, Tyco International or such Guarantor, as applicable, will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Authority in respect accordance with all applicable laws. The Issuer, Tyco International or such Guarantor, as applicable, will use their reasonable best efforts to obtain certified copies of tax receipts evidencing the payment of any paymentTaxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Issuer, Tyco International or such Guarantor, as the case may be, will, upon request, make available to the Holders of the Securities, within 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Issuer, Tyco International or such Guarantor or if, notwithstanding the Issuer's, Tyco International's or such Guarantor's efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by the Issuer, Tyco International or such Guarantor. At least 30 days prior to each date on which such any payment first becomes under or with respect to the Securities is due and payable, but if the full amount Issuer, Tyco International or such Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer, Tyco International or such Guarantor will deliver to the Trustee an Officer's Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to Holders of Securities on the payment date. The foregoing provisions shall survive any termination of the moneys payable has not been received by the Paying Agent on or prior discharge of this Indenture and shall apply mutatis mutandis to such due date, it means the first date on any jurisdiction in which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given any successor Person to the Series 18 Holders;Issuer, Tyco International or such Guarantor, as the case may be, is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein. In addition, the Issuer will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and additional amounts with respect thereto, payable in Luxembourg or the United States or any political subdivision or taxing authority of or in the foregoing in respect of the creation, issue, offering, enforcement, redemption or retirement of the Securities. Whenever in this Indenture or the Securities there is mentioned, in any context, the payment of principal, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. ARTICLE THIRTEEN
Appears in 1 contract
Payment of Additional Amounts. i. (a) The Partnership Company and the Subsidiary Guarantors shall make all payments on the Series 18 Preferred Units free and clear of and without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, pay to holders of the Series 18 Holders such Notes all additional amounts (the “Additional Amounts”) as distributions as that may be necessary so that every net payment made to such holders, after such withholding or deduction of interest (including any such withholding premium paid upon redemption of the Notes) or deduction from such Additional Amounts), shall be equal principal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership Holder shall not be required to less than the amount provided for in the Notes. The term “net payment” means the amount the Company or its Paying Agent pay any Additional Amounts the Holder after deducting or withholding an amount for or on account ofof any present or future taxes, duties, assessments or other governmental charges (“Taxes”) imposed with respect to that payment by a Mexican taxing authority (“Taxing Authority”).
(b) The Company and the Subsidiary Guarantors shall not pay additional amounts to any Holder for or solely on account of any of the following:
a(1) any taxes, duties, assessments or other governmental charges imposed solely because at any time there is or was a connection between the Holder or beneficial owner of the Note and Mexico (or any political subdivision or territory or possession thereof), including such Holder or beneficial owner (i) being or having been a citizen or resident thereof, (ii) maintaining or having maintained an office, permanent establishment, or branch subject to taxation therein, or (iii) being or having been present or engaged in a trade or business therein (other than the mere receipt of a payment or the ownership or holding of a Note),
(2) any estate, inheritance, gift, transfer or similar tax, assessment or other governmental charge imposed with respect to the Notes,
(3) any taxes, duties, assessments or other governmental charges imposed solely because the Holder or any other person fails to comply with any certification, identification, information, documentation or other reporting requirement concerning the nationality, residence, identity or connection with Mexico (or any political subdivision or territory or possession thereof) of the Holder or any beneficial owner of the Note, if compliance is required by statute, regulation, officially published administrative practice of the taxing jurisdiction or by an applicable income tax treaty, which is in effect to which Mexico is a party, as a precondition to exemption from, or reduction in the rate of, the tax, assessment or other governmental charge and we have given the Holders at least 30 days’ notice that Holders will be required to provide such information and identification;
(4) any tax, fee, duty, assessment or other governmental charge of whatever nature that would not have been imposed but for the fact that such holder 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 payable otherwise had some connection with the Relevant Taxing Jurisdiction other than by reason of deduction or withholding from payments on the mere ownership ofNotes,
(5) any taxes, duties, assessments or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units other governmental charges with respect to such Note presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the holder holders of such Note would have been entitled to such additional amounts if it had presented on presenting such units Note for payment on any day within date during such 30 day period, and
(6) any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the additional amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note.
(1) The limitations on the Company’s and Subsidiary Guarantors’ obligations to pay Additional Amounts set forth in Section 3.21(b)(3) above shall not apply:
(i) if the provision of information, documentation or other evidence described in such Section 3.21(b)(3) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note, taking into account any relevant differences between U.S. and Mexican law, regulation or administrative practice, than comparable information or other reporting requirements imposed under U.S. tax law (including the United States-Mexico income tax treaty). The “Relevant Date” means, regulation (including proposed regulations) and administrative practice.
(ii) unless (A) the provision of the information, documentation or other evidence described in such Section 3.21(b)(3) becomes expressly required by the applicable Mexican statutes, regulations and administrative practices and the Company cannot obtain such information, documentation or other evidence on its own through reasonable diligence, and (B) the Company otherwise would not meet the requirements for application of the reduced Mexican tax rate; or
(iii) if the provisions of Article 195, Section II, subsection (a) of the Mexican Income Tax Law (or a substitute equivalent provision) are not complied with by the Company or any Subsidiary Guarantor, and a higher withholding tax would apply.
(2) In addition, such Section 3.21(b)(3) does not require, and shall not be construed to require that any person, including any non-Mexican pension fund, retirement fund or financial institution, register with the Ministry of Finance and Public Credit to establish eligibility for an exemption from, or a reduction of, Mexican withholding tax.
(d) Upon request, the Company and the Subsidiary Guarantors shall provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Mexican Taxes in respect of which we have paid any payment, Additional Amount. The Company shall make copies of such documentation available to the date on which such payment first becomes due and payable, but if the full amount Holders of the moneys payable has not been received by Notes or the Paying Agent upon request.
(e) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 3.21 are based on rates of deduction or prior withholding of withholding taxes in excess of the appropriate rate applicable to such due date, it means the first date on which the full amount Holder of such moneys having been so received Notes, and being available as a result thereof such Holder is entitled to make a claim for payment a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, be deemed to holders have assigned and notice transferred all right, title and interest to that effect shall have been duly given any such claim for a refund or credit of such excess to the Series 18 Holders;Company. However, by making such assignment, the Holder makes no representation or warranty that the Company will be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
(f) In the event of any merger or other transaction described and permitted under Section 4.1, then all references to Mexico, Mexican law or regulations, and Mexican taxing authorities under this Section 3.21 (other than Section 3.21(c)(1)) and under Article V and Section 5 of Exhibit A shall be deemed to also include the United States and any political subdivision therein or thereof, United States law or regulations, and any taxing authority of the United States or any political subdivision therein or thereof, respectively.
Appears in 1 contract
Sources: Indenture (Homex Development Corp.)
Payment of Additional Amounts. i. The Partnership (a) All payments by the Borrower in respect of the Loans or by a Guarantor in respect of its Loan Guarantee shall make all payments on the Series 18 Preferred Units be made free and clear of and without deduction or withholding or deduction at source for, for or on account of, of any present or future taxes, fees, duties, assessments assessments, fees or other governmental charges of whatever nature ("Taxes") imposed or levied by or on behalf of Mexico or of any Relevant other jurisdiction in which the Borrower or any Guarantor is incorporated or any political subdivision or taxing authority thereof or therein (any of the aforementioned, a "Taxing Jurisdiction"), unless such taxeswithholding or deduction is required by law.
(b) Subject to Section 5.14(c), feesif the Borrower or a Guarantor is required by the law of any Taxing Jurisdiction to make any such withholding or deduction, duties, assessments the Borrower or governmental charges are required to be withheld or deducted by such Guarantor shall (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders Lender Parties such additional amounts (the “"Additional Amounts”") as distributions as may be necessary so that every net payment made to such holders, by the Borrower on the Loans after such deduction or withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account ofof any such Taxes (including deductions applicable to Additional Amounts payable under this paragraph (b)) shall not be less than the amount the Lender Parties would have received with respect to such Loans had no such deduction or withholding been made; and (ii) pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law.
(c) The obligation to pay Additional Amounts set forth in (b)Section 5.14(b) shall not apply to:
a(i) any tax, fee, duty, assessment assessment, fee or other governmental charge of whatever nature that would not have been imposed but for the fact that such holder was a residentexistence of any present or former connection, domiciliary or national of, or engaged in business or maintained including a permanent establishment or fixed base, between such Lender Party and Mexico or any other applicable Taxing Jurisdiction imposing such governmental charge other than by the receipt of such payment and the terms of the Loan Documents;
(ii) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge; or
(iii) in the case of any Lender Party that is or was physically present ina Foreign Financial Institution (as defined below) on the date such Person became a Lender and thus subject to the requirements of paragraph (h) below, any withholding taxes imposed as a result of a failure of such Lender to comply with its obligations set forth in paragraph (h) below, subject to the exceptions and limitations provided therein; provided that the taxes excluded shall be deemed to include only withholdings or deductions payable by the Borrower in respect of payments hereunder in excess of a rate equal to the rate applicable if there had been no such failure by such Lender Party to comply with paragraph (h) below.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to the Loans is due and payable (or, as early as practicable, if the obligation to pay Additional Amounts arises after the 30th day prior to such date), if the Borrower or a Guarantor will be obligated to pay Additional Amounts with respect to such payment in an amount different than the Additional Amounts payable on the date hereof, the Relevant Taxing Jurisdiction Borrower or such Guarantor shall deliver to the Administrative Agent an Officers' Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable, and setting forth such other information necessary to enable the Administrative Agent to pay such Additional Amounts to Lenders on the payment date. In the absence of any such certificate, the Administrative Agent may assume that no such deduction or withholding shall be required. The Borrower agrees to indemnify the Administrative Agent for, and to hold it harmless against, any loss, liability or expense incurred without bad faith on its part arising out of or in connection with actions taken or omitted by it in reliance, absent manifest error, on any certificate furnished pursuant to this Section 5.14(d) or not furnished. The obligations of the Borrower under this Section 5.14(d) shall survive the payment of the Loans, the resignation or removal of the Administrative Agent and/or the termination of this Agreement.
(e) The Borrower or Guarantor, as the case may be, shall provide to the Administrative Agent documentation evidencing payment of withholding taxes within 30 days after payment thereof. Copies of such documentation shall be made available to Lenders upon written request therefor.
(f) The Borrower or a Guarantor will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest and penalties in Mexico or the United States or any political subdivision thereof or otherwise had some connection with taxing authority of or in the Relevant Taxing Jurisdiction other than by reason foregoing in respect of the mere ownership ofBorrowing.
(g) Whenever in this Agreement there is mentioned, in any context:
(i) the payment of principal, interest or receipt additional interest on the Loans;
(ii) redemption or repurchase prices in respect of the Loans; or
(iii) any other amount payable on or with respect to any of the Loans, such reference will be deemed to include payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except of Additional Amounts as described under this Section 5.14 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(h) Each Lender Party that is a Foreign Financial Institution on the holder Effective Date (or, if such Lender Party becomes a Lender after the Effective Date as a result of an assignment, on the date of such assignment) shall, at the request of the Borrower, made pursuant to a written notice given at least 30 days prior to the relevant filing date, use reasonable commercial efforts to file with the Ministry of Finance or, where applicable, in accordance with the laws of any jurisdiction outside Mexico from or through which payments hereunder or under any Notes are made, a form, certificate or other similar document requested by the Borrower (including without limitation any such form, certificate or other similar document that may be required to maintain such Lender Party's status as a Foreign Financial Institution) if (1) such filing is required under applicable law or a treaty for the avoidance of double taxation then in effect, (2) such filing would have been entitled avoid the need for making any tax withholding or deduction, or reduce the tax rate of any such withholding or deduction which may thereafter accrue to or for the account of such Lender Party pursuant to this Section and (3) such filing would not, in the good faith judgment of such Lender Party, require such Lender Party to disclose any confidential or proprietary information or be otherwise disadvantageous to such amounts if Lender Party. Notwithstanding the foregoing, it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, is understood and agreed that nothing in respect this Section shall interfere with the rights of any paymentLender Party to conduct its fiscal or tax affairs in such manner as it deems appropriate. As used herein, "Foreign Financial Institution" means an institution registered as a foreign financial institution with the date on which such payment first becomes due Ministry of Finance in the registry referred to in Article 197 of Mexico's Income Tax Law and payableany successor provision thereof, but if the full amount for purposes of the moneys payable has not been received by the Paying Agent on or prior to such due datefraccion I, it means the first date on which the full amount inciso a), subinciso 2, of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;Article 195 of Mexico's Income Tax Law.
Appears in 1 contract
Sources: Loan Agreement (Vitro Sa De Cv)
Payment of Additional Amounts. i. The Partnership shall make all (a) All payments on made by the Series 18 Preferred Units Company under or with respect to the Notes, or by any Note Guarantor pursuant to the Note Guarantees, will be made free and clear of and without withholding or deduction at source for, for or on account of, of any present or future taxestax, feesduty, dutieslevy, assessments impost, assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (government of Canada or any regulations province or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units or territory thereof, (ii) an official position regarding any jurisdiction other than the application, administration, interpretation United States in which the Company or enforcement of any such lawsNote Guarantor is organized or otherwise resident for tax purposes or (iii) any jurisdiction other than the United States from or through which payment on the Notes or the Note Guarantees is made, regulations in each case including any political subdivision or rulings any authority or agency therein or thereof having power to tax (including each a holding by a court of competent jurisdiction “Taxing Authority”), unless the Company or such Note Guarantor is required to withhold or deduct Taxes under any law or by a taxing authority in any Relevant Taxing Jurisdiction)the interpretation, application or administration thereof. If a withholding or deduction at source is requiredIf, after the Issue Date, the Partnership shallCompany or such Note Guarantor, subject as the case may be, is so required to withhold or deduct any amount for or on account of Taxes imposed by any Taxing Authority from any payment made under or with respect to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule ANotes or the Note Guarantees, as the case may be, the Company or such Note Guarantor, as the case may be, will pay to each Holder of Notes that are Outstanding on the Series 18 Holders date of the required payment, such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every the net payment made to amount received by such holders, Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment made to a Holder or beneficial owner of the Notes (including an “Excluded Holder”):
(1) with which the Company or such Note Guarantor does not deal at arm’s length (within the meaning of the Income Tax Act (Canada)) at the time of making such payment,
(2) which is subject to such Taxes by virtue of all or any portion of such withholding payment being deemed to be a dividend to such Holder or deduction from beneficial owner pursuant to subsection 214(16) of the Income Tax Act (Canada),
(3) which is subject to such Additional AmountsTaxes by reason of its being or having been connected with the Taxing Authority imposing such Taxes otherwise than by the mere holding, use or ownership, or deemed holding, use or ownership, of the Notes or the receipt of payments thereunder (as a matter of, for example, citizenship, nationality, residence, domicile, or existence of a business or permanent establishment, a dependent agent, a place of business or a place of management present or deemed present within the Taxing Authority),
(4) which failed to duly and timely comply with a timely request of the Company to provide information, shall be equal documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, entitlement to treaty benefits or identity, if and to the amounts the Partnership extent that (A) such Holder or beneficial owner was legally able to comply with such request and (B) due and timely compliance with such request is required by applicable law as a precondition to reduction or elimination of, and would otherwise have been required reduced or eliminated, any Taxes as to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any which Additional Amounts would have otherwise been payable to such Holder or beneficial owner but for this clause (4),
(5) which is a fiduciary or on account of:
aa partnership or not the sole beneficial owner of the relevant Note, if and to the extent that any beneficiary or settlor with respect to such fiduciary, any partner with respect to such partnership or any beneficial owner of such Note (as the case may be) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for entitled to receive Additional Amounts with respect to the fact payment in question had such beneficiary, settlor, partner or beneficial owner been the sole beneficial owner of such Note,
(6) in respect of any estate, gift, inheritance, value added, excise, transfer, intangible or similar tax,
(7) in respect of withholdings or deductions that such holder was a residentare required to be made pursuant to the European Union Directive 2003/48/EC (the “Directive”) or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26 and 27, domiciliary 2000 on the taxation of savings income or national ofany law implementing or complying with, or engaged introduced in business or maintained a permanent establishment or was physically present inorder to conform to, the Relevant Taxing Jurisdiction Directive or any political subdivision thereof such other directive,
(8) in respect of any Taxes imposed under sections 1471-1474 of the Code, any current or otherwise had some future regulations thereunder or interpretations thereof, any agreements entered into pursuant to section 1471(b) of the Code, any intergovernmental agreement entered into (or treated as being in effect) in connection with the Relevant Taxing Jurisdiction other than by reason implementation of such sections of the mere ownership ofCode, and any fiscal or regulatory legislation, rules, or receipt official practices adopted pursuant to any such intergovernmental agreement,
(9) if and to the extent that such payment could have been made without deduction or withholding of payment under, such Taxes had the Series 18 Preferred Units or any Series 18 Preferred Units relevant Note been presented for payment (where presentation is required for payment) more than within 30 days after the Relevant Date date on which such payment or such Note became due and payable or the date on which payment thereof was duly provided for, whichever was later (except to the extent that the holder such Holder or beneficial owner would have been entitled to Additional Amounts had the Note been presented on the last day of such amounts if it had presented such units for payment on any day within such 30 30-day period), or
(10) any combination of the above clauses in this Section 3.22(a). The “Relevant Date” meansCompany or such Note Guarantor will also make such withholding or deduction, and remit the full amount deducted or withheld to the relevant Taxing Authority in accordance with applicable law.
(b) The Company or the Note Guarantor will furnish to the Holders, within 30 days after the date the payment of any Taxes imposed by any Taxing Authority is due pursuant to applicable law, copies of tax receipts, if any, evidencing that such payment has been made by the Company or such Note Guarantor, as applicable. The Company or any Note Guarantor will indemnify and hold harmless each Holder or beneficial owner of Notes (without duplication) that are Outstanding on the date of the required payment (other than an Excluded Holder) and upon written request reimburse each such Holder or beneficial owner (other than an Excluded Holder) for the amount of: (A) any Taxes so levied or imposed and paid by such Holder or beneficial owner (without duplication) as a result of payments made under or with respect to the Notes, and (B) any Taxes imposed with respect to any reimbursement under clause (A) immediately above, in respect each case without duplication of any paymentpayment made by the Company or a Note Guarantor pursuant to Section 3.22(a) (such amount provided in clauses (A) and (B) collectively, the a “Reimbursement Payment”). At least 30 days prior to each date on which such any payment first becomes under or with respect to the Notes is due and payable, but if the full amount Company becomes obligated to pay Additional Amounts with respect to such payment, the Company will deliver to the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amounts so payable and will set forth such other information as is necessary to enable the Trustee to pay such Additional Amounts to the Holders of the moneys Notes on the payment date; provided that the Trustee shall not be deemed to have notice or be charged with knowledge of such Additional Amounts until such Officers’ Certificate is delivered to the Trustee pursuant to this Section 3.22(b).
(c) Whenever in this Indenture there is mentioned, in any context: (i) the payment of principal (and premium, if any), (ii) purchase prices in connection with a repurchase or a redemption of Notes, (iii) interest, or (iv) any other amount payable has not been received by the Paying Agent on or prior with respect to any of the Notes or the Note Guarantees, such due date, it means mention shall be deemed to include mention of the first date on which the full amount payment of such moneys having been so received Additional Amounts and being available Reimbursement Payments provided for payment to holders and notice to that effect shall have been duly given in this Section 3.22 to the Series 18 Holders;extent that, in such context, Additional Amounts or Reimbursement Payments are, were or would be payable in respect thereof.
Appears in 1 contract
Sources: Indenture (MDC Partners Inc)
Payment of Additional Amounts. i. The Partnership shall make (a) Any and all payments on by the Series 18 Preferred Units Company hereunder or under the Convertible Notes to any Purchaser and each "qualified assignee" thereof shall be made free and clear of and without deduction or withholding or deduction at source for, or on account of, for any and all present or future taxes, feeslevies, dutiesimposts, assessments deductions, charges or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdictionwithholdings, unless and all liabilities with respect thereto (all such taxes, feeslevies, dutiesimposts, assessments or governmental charges deductions, charges, withholdings and liabilities being hereinafter referred to as "Taxes") unless such Taxes are required by law or the administration thereof to be withheld deducted or deducted withheld. If the Company shall be required by law or the administration thereof to deduct or withhold any Taxes from or in respect of any sum payable under the Convertible Notes (i) the laws holders of convertible Notes subject to such Taxes shall have the right, but not the obligation, following the Restricted Period, and for a period of thirty (30) days commencing upon the day it shall have received written notice form the Company that it is required to withhold Taxes to transfer all or any regulations or rulings promulgated thereunder) portion of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units or Convertible Notes to a qualified assignee to the extent such transfer can be effected in accordance with the other provisions of this Agreement and applicable law; (ii) an official position regarding the application, administration, interpretation Company shall make such deductions or enforcement of any such laws, regulations or rulings withholdings; (including a holding by a court of competent jurisdiction or by a taxing authority in any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, iii) the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(esum payable -------------------------------------------------------------------------------- SECURITIES PURCHASE AGREEMENT - Page 13 (American International Petroleum Corporation) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions 85478.4 shall be increased as may be necessary so that every net payment made to such holders, after such withholding making all required deductions or deduction withholdings (including any deductions or withholdings applicable to additional amounts paid under this Section 3.5) such withholding or deduction from such Additional Amounts), shall be Purchaser receives an amount equal to the amounts the Partnership sum it would otherwise have been required to pay had received if no such deduction or withholding had been made; and (iv) the Company shall forthwith pay the full amount deducted or deduction been required.
iiwithheld to the relevant taxation or other authority in accordance with applicable law. The Partnership shall not be required to pay any Additional Amounts for A "qualified assignee" of a Purchaser is a Person that is organized under the laws of (I) the United States or on account of:
a(II) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for jurisdiction other than the fact that such holder 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 United States or any political subdivision thereof or otherwise had some connection with the Relevant Taxing Jurisdiction other than by reason and that (y) represents and warrants to each of the mere ownership Company that payments of the company to such assignee under the laws in existence on the date of this Agreement would not be subject to any Taxes and (z) from time to time, as and when requested by the company, executes and delivers to the Company and the Internal Revenue Service forms, and provides the Company with any information necessary to establish such assignee's continued exemption from Taxes under applicable law.
(b) The Company shall forthwith pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies (all such taxes, charges and levies hereinafter referred to as "Other Taxes") which arise from any payment made under any of the Transaction Agreements or from the execution, delivery or registration of, or receipt otherwise with respect to, this Agreement other than Taxes payable solely as a result of payment underthe transfer from the Purchasers to a Person of any Security.
(c) The Company shall indemnify each Purchaser, or qualified assignee, for the Series 18 Preferred Units full amount of Taxes or Other Taxes (including, without limitation, any Series 18 Preferred Units presented for payment Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 3.5) paid by each Purchaser, or qualified assignee, and any liability (where presentation is required for paymentincluding penalties, interest and expenses) more than arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted. Payment under this indemnification shall be made within 30 days from the date such Purchaser or assignee makes written demand therefor. A certificate as to the amount of such Taxes or Other Taxes submitted to the Company by such Purchaser or assignee shall be conclusive evidence of the amount due from the Company to such party.
(d) Within 30 days after the Relevant Date date of any payment of Taxes, the Company will furnish to each Purchaser the original or a certified copy of a receipt evidencing payment thereof.
(except e) Each Purchaser shall provide to the extent Company a Form W-8, stating that it is a non-U.S. person, together with any additional tax forms which may be required under the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” meansCode, in respect of any payment, as amended after the date on which such payment first becomes due and payablehereof, but if the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, allow interest payments to be made to it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;without deduction. -------------------------------------------------------------------------------- SECURITIES PURCHASE AGREEMENT - Page 14 (American International Petroleum Corporation) 85478.4
Appears in 1 contract
Sources: Securities Purchase Agreement (American International Petroleum Corp /Nv/)
Payment of Additional Amounts. i. The Partnership (a) All payments made by the Company under, or with respect to, the Notes shall make all payments on the Series 18 Preferred Units be made free and clear of of, and without withholding or deduction at source for, for or on account of, of any present or future taxestax, feesduty, dutieslevy, assessments impost, assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 or of the United States, Mexico, any Relevant jurisdiction in which the Company is, or any successor of the Company is, organized (wherein any successor assumes the obligations of the Notes and this Indenture following a consolidation or merger or a transfer, conveyance, sale, lease or disposition of all or substantially all of the Company’s assets and properties), or any other jurisdiction through which payments on the Notes are made (a “Taxing Jurisdiction”). , unless the Company is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If a withholding the Company is so required to withhold or deduction at source is requireddeduct any amount for, or on account of, such Taxes from any payment made under or with respect to the Notes, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, Company shall pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every the net payment made to such holders, amount received by each Holder (including Additional Amounts) after such withholding or deduction (including any shall not be less than the amount such withholding or deduction from Holder would have received if such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have Taxes had not been required to pay had no such withholding be withheld or deduction been required.
ii. The Partnership shall not be required deducted; provided, however, that the foregoing obligation to pay any Additional Amounts for or on account ofdoes not apply to:
a(1) any tax, fee, duty, assessment Taxes imposed solely because at any time there is or governmental charge of whatever nature that would not have been imposed but for the fact that such holder was a residentconnection between the Holder or beneficial owner of the Notes, domiciliary as the case may be, and a Taxing Jurisdiction, including such Holder or national of, beneficial owner being or having been a citizen or resident of such Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business or maintained having had 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 therein (other than by reason the mere purchase of the mere ownership ofNotes, or receipt of a payment underor the ownership or holding of the Notes);
(2) any estate, inheritance, gift, sales, transfer, personal property or similar Tax imposed with respect to the Notes;
(3) any Taxes imposed solely because the Holder or any other person fails to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with a Taxing Jurisdiction of the Holder or any beneficial owner of the Note, if compliance is required by the applicable law, regulation or by an applicable income tax treaty of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of, the Series 18 Preferred Units tax, assessment or other governmental charge, and the Company has given the Holders at least thirty (30) days’ notice that Holders shall be required to provide such information and identification;
(4) any Series 18 Preferred Units presented Taxes payable otherwise than by deduction or withholding from payments on the Notes;
(5) any Taxes that would have been avoided by presenting for payment (where presentation is required required) the relevant Note to another Paying Agent;
(6) any Taxes with respect to such Note presented for payment) payment more than 30 thirty (30) days after the Relevant Date (date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the holder Holders of such Note would have been entitled to such amounts if it had presented Additional Amounts on presenting such units Note for payment on any day within date during such 30 30-day period). The “Relevant Date” means;
(7) any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note;
(8) any Taxes withheld or deducted on or in respect of any paymentNote pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the date on which “Code”), as amended (commonly referred to “FATCA”), any treaty, law, regulation or other official guidance enacted by the United States implementing FATCA, any agreement between the Company and the United States implementing FATCA pursuant to Section 1471(b)(1) of the Code, as amended, or any law of any jurisdiction implementing an intergovernmental approach to FATCA; or
(9) any combination of the foregoing.
(c) The obligations in Section 4.04(a) and Section 4.04(b) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor to the Company. The Company shall (i) make such payment first becomes due withholding or deduction and payable, but if (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Company shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within thirty (30) days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Company, furnish such other documentation that provides reasonable evidence of such payment by the Company.
(d) The exception to the Company’s obligations to pay Additional Amounts pursuant to clause (iii) of Section 4.04(b) will not apply if (i) the provision of information, documentation or other evidence described in such clause would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulation (including proposed regulations) and administrative practice, or (ii) Article 166, Section II, paragraph a), of the moneys payable has not been received Mexican Income Tax Law (Ley del Impuesto Sobre la Renta) (or a substitute or equivalent provision) is in effect, unless (A) the provision of the information, documentation or other evidence described in clause (iii) of Section 4.04(b) is expressly required by the Paying Agent applicable Mexican laws and regulations in order to apply Article 166, Section II, paragraph a), of the Mexican Income Tax Law (or substitute or equivalent provision), (B) the Company cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican laws and regulations on its own through reasonable diligence and (C) the Company would not otherwise meet the requirements for application of the applicable Mexican laws and regulations.
(e) Clause (iii) of Section 4.04(b) does not require, and shall not be construed to require, that any Holder, including any non-Mexican pension fund, retirement fund, tax-exempt organization or prior financial institution, register with the Mexican Tax Management Service (Servicio de Administración Tributaria) or the Mexican Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) to such due dateestablish eligibility for an exemption from, it means or a reduction of, Mexican withholding taxes.
(f) Any reference in this Indenture, any supplemental indenture or the first date Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Company shall be deemed to include all Additional Amounts, if any that may be payable with respect to that amount under the obligations referred to in this subsection. Payment of any Additional Amounts with respect to interest shall be considered as an interest payment under, or with respect to, the Notes.
(g) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 4.04 are based on which rates of deduction or withholding of withholding taxes in excess of the full amount appropriate rate applicable to the Holder of such moneys having been so received Notes, and being available as a result thereof such Holder is entitled to make a claim for payment a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, and without any further action, be deemed to holders have assigned and notice transferred all right, title and interest to that effect shall have been duly given any such claim for a refund or credit of such excess to the Series 18 Holders;Company. However, by making such assignment, the Holder makes no representation or warranty that the Company shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
(h) Notwithstanding anything to the contrary contained in this Indenture, the Company may, to the extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America from principal or interest payments.
Appears in 1 contract
Sources: Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. i. The Partnership shall make All payments of principal, premium, if any, and interest on Securities of any series, and all payments on the Series 18 Preferred Units Guarantees shall be made without set-off, counterclaim, fees, liabilities or similar deductions, and free and clear of of, and without deduction or withholding or deduction at source for, or on account of, any present or future taxes, feeslevies, imposts, duties, assessments charges or governmental charges fees of whatever whatsoever nature imposed now or levied hereafter imposed, levied, collected, deducted, withheld or assessed by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (Commonwealth of Puerto Rico or any regulations political subdivision or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdictionthereof or therein ("Taxes"). If a the Company, Guarantor, or any agent thereof is required by law or regulation to make any deduction or withholding for or deduction at source is requiredon account of Taxes, the Partnership shallCompany or Guarantor, subject to as the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Acase may be, shall pay to the Series 18 Holders such additional amounts (the “"Additional Amounts”") as distributions as may shall be necessary so in order that every the net payment made to such holders, amounts received by the Holders of the Securities of any series or the holders or beneficial owners of any interest therein or rights in respect thereof after such deduction or withholding shall equal the amount that would have been receivable thereunder in the absence of such deduction or deduction (including any such withholding or deduction from withholding, except that no such Additional Amounts), Amounts shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account ofpayable:
(a) to any tax, fee, duty, assessment Holder of a Security or governmental charge any interest therein or rights in respect thereof where such deduction or withholding is required by reason of whatever nature such Holder having some connection with the Commonwealth of Puerto Rico or any political subdivision or taxing authority thereof or thereon other than the mere holding of a payment in respect of such security;
(b) in respect of any deduction or withholding that would not have been imposed required but for the fact that such holder was presentation by the Holder of 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 by reason of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented Security for payment (where presentation is required for payment) on a date more than 30 days after the Relevant Date of Maturity or the date on which payment thereof is duly provided for, whichever occurs later; or
(except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, c) in respect of any paymentdeduction or withholding that would not have been required but for the failure to comply with any certification, identification or other reporting requirements concerning the date on which such payment first becomes due and payablenationality, but if residence, identity or connection with the full amount Commonwealth of Puerto Rico, or any political subdivision or taxing authority thereof or therein, of the moneys payable has not been received Holder of a Security or any interest therein or rights in respect thereof, if compliance is required by the Paying Agent on Commonwealth of Puerto Rico, or prior any political subdivision or taxing authority thereof or therein, as a precondition to exemption from such due date, it means deduction or withholding. Any reference in the first date on which the full amount of such moneys having been so received and being available for payment Indenture to holders and notice principal or interest shall be deemed also to refer to any Additional Amounts that effect shall have been duly given to the Series 18 Holders;may be payable under this Section 1012.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership (a) All payments made by the Issuer or the Note Guarantors under, or with respect to, the Notes shall make all payments on the Series 18 Preferred Units be made free and clear of of, and without withholding or deduction at source for, for or on account of, of any present or future taxestax, feesduty, dutieslevy, assessments impost, assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of any Relevant the United States, Mexico, Spain, the Netherlands, France, the United Kingdom, Switzerland or, in the event that the Issuer appoints additional paying agents, by the jurisdictions of such additional paying agents (a “Taxing Jurisdiction”), unless the Issuer or such taxesNote Guarantor, feesas the case may be, duties, assessments or governmental charges are is required to be withheld withhold or deducted deduct Taxes by law or by the official interpretation or administration thereof.
(ib) If the laws (Issuer or any regulations Note Guarantor is so required to withhold or rulings promulgated thereunder) of deduct any Relevant Taxing Jurisdiction for amount for, or on account of, such Taxes from any payment made under or with respect to the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredNotes, the Partnership shallIssuer or such Note Guarantor, subject to as the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Acase may be, shall pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every the net payment made to such holders, amount received by each Holder (including Additional Amounts) after such withholding or deduction (including any shall not be less than the amount such withholding or deduction from Holder would have received if such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have Taxes had not been required to pay had no such withholding be withheld or deduction been required.
ii. The Partnership shall not be required deducted; provided, however, that the foregoing obligation to pay any Additional Amounts for or on account ofdoes not apply to:
a(i) any tax, fee, duty, assessment Taxes imposed solely because at any time there is or governmental charge of whatever nature that would not have been imposed but for the fact that such holder was a resident, domiciliary or national of, or engaged in business or maintained connection between the Holder and 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 by reason the mere purchase of the mere ownership ofNotes, or receipt of a payment underor the ownership or holding of the Notes),
(ii) any estate, inheritance, gift, sales, transfer, personal property or similar Tax imposed with respect to the Notes,
(iii) any Taxes imposed solely because the Holder or any other person fails to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with a Taxing Jurisdiction of the Holder or any beneficial owner of the Note if compliance is required by the applicable law of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of, the Series 18 Preferred Units tax, assessment or other governmental charge, and the Issuer has given the Holders at least 30 days’ notice that Holders shall be required to provide such information and identification,
(iv) any Taxes payable otherwise than by deduction or withholding from payments on the Notes,
(v) any Taxes imposed on a payment to or for the benefit of an individual pursuant to European Council Directive 2003/48/EC (as amended from time to time) or any Series 18 Preferred Units presented law implementing or complying with, or introduced in order to conform to, such Directive,
(vi) any Taxes that would have been avoided by presenting for payment (where presentation is required required) the relevant Note to another Paying Agent,
(vii) any Taxes with respect to such Note presented for payment) payment more than 30 days after the Relevant Date (date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the holder Holders of such Note would have been entitled to such amounts if it had presented Additional Amounts on presenting such units Note for payment on any day within date during such 30 day period), or
(viii) any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note.
(c) The obligations in Section 3.21(a) and Section 3.21(b) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The “Relevant Date” meansIssuer or such Note Guarantor, as applicable, shall (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer or such Note Guarantor, as applicable, furnish such other documentation that provides reasonable evidence of such payment by the Issuer or such Note Guarantor, as applicable.
(d) The exception to the Issuer’s obligations to pay Additional Amounts pursuant to clause (iii) of Section 3.21(b) will not apply if (i) the provision of information, documentation or other evidence described in such clause would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulation (including proposed regulations) and administrative practice, or (ii) Article 166, Section II, paragraph (a), of the Mexican Income Tax Law (Ley del Impuesto Sobre la Renta) (or a substitute or equivalent provision) is in effect, unless (A) the provision of the information, documentation or other evidence described in clause (iii) of (b)Section 3.21(b) is expressly required by the applicable Mexican laws and regulations in order to apply Article 166, Section II, paragraph (a), of the Mexican Income Tax Law (or substitute or equivalent provision), (B) the Issuer or any Note Guarantor cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican laws and regulations on its own through reasonable diligence and (C) the Issuer or any Note Guarantor would not otherwise meet the requirements for application of the applicable Mexican laws and regulations.
(e) Clause (iii) of Section 3.21(b) does not require, and shall not be construed to require, that any holder, including any non-Mexican pension fund, retirement fund, tax-exempt organization or financial institution, register with the Tax Management Service (Servicio de Administración Tributaria) or the Mexican Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) to establish eligibility for an exemption from, or a reduction of, Mexican withholding taxes.
(f) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Issuer shall be deemed also to refer to any paymentAdditional Amount that may be payable with respect to that amount under the obligations referred to in this subsection. Payment of any Additional Amounts with respect to interest shall be considered as an interest payment under, or with respect to, the date Notes.
(g) The Issuer will ensure that it maintains a paying agent, in a European Union member state, that will not be obliged to withhold or deduct tax pursuant to European Council Directive 2003/48/EC (as amended from time to time) or any law implementing or complying with, or introduced in order to conform to, such Directive.
(h) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 3.21 are based on which such payment first becomes due and payable, but if the full amount rates of deduction or withholding of withholding taxes in excess of the moneys payable has not been received by appropriate rate applicable to the Paying Agent on or prior to such due date, it means the first date on which the full amount Holder of such moneys having been so received Notes, and being available as a result thereof such Holder is entitled to make a claim for payment a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, and without any further action, be deemed to holders have assigned and notice transferred all right, title and interest to that effect shall have been duly given any such claim for a refund or credit of such excess to the Series 18 Holders;Issuer. However, by making such assignment, the Holder makes no representation or warranty that the Issuer shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
Appears in 1 contract
Sources: Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. i. The Partnership All payments made by the Issuer under or with respect to the Notes shall make all payments on the Series 18 Preferred Units be made free and clear of and without withholding or deduction at source for, for or on account of, of any present or future taxes, fees, duties, assessments or governmental charges of whatever nature Taxes imposed or levied by or on behalf of any Taxing Authority in any jurisdiction in which the Issuer is organized or is otherwise resident for tax purposes or any jurisdiction from or through which payment is made (each a "Relevant Taxing Jurisdiction"), unless the Issuer is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If the Issuer is required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction, unless from any payment made under or with respect to the Notes, the Issuer shall make such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, shall pay to the Series 18 Holders such additional amounts (the “"Additional Amounts”") as distributions as may be necessary so that every the net payment made to such holders, amount received by each Holder of Notes (including Additional Amounts) after such withholding or deduction (including any shall equal the amount the Holder would have received if such withholding Taxes had not been withheld or deduction from such deducted; provided, however, that no Additional Amounts), Amounts shall be equal payable with respect to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
a) any tax, fee, duty, assessment or governmental charge of whatever nature Tax that would not have been imposed imposed, payable or due:
(1) with respect to a Holder with which the Issuer or any Guarantor does not deal on an arm's length basis within the meaning of the Income Tax Act (Canada) on the date of such payment;
(2) but for the fact that such holder was existence of any present or former connection between the Holder and the Relevant Taxing Jurisdiction (including being a resident, domiciliary citizen or resident or national of, or engaged in carrying on a business or maintained maintaining a permanent establishment in, or was being physically present in, the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise had some connection with the Relevant Taxing Jurisdiction Jurisdiction) other than by reason the mere holding of the mere ownership of, Notes or enforcement of rights thereunder or the receipt of payment underpayments in respect thereof;
(3) but for the failure to satisfy any certification, identification or other reporting requirements whether imposed by statute, treaty, regulation or administrative practice; or
(4) if the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment presentation of Notes (where presentation is required required) for payment) more than payment has not occurred within 30 days after the Relevant Date (except date such payment was due and payable or was duly provided for, whichever is later. In addition, Additional Amounts shall not be payable if the beneficial owner of, or person ultimately entitled to obtain an interest in, such Notes had been the Holder of the Notes and such beneficial owner would not be entitled to the extent payment of Additional Amounts by reason of clause (1), (2), (3) or (4) above. In addition, Additional Amounts shall not be payable with respect to any Tax which is payable or assessed on a Holder under the laws of the jurisdiction(s) in which: (1) that the holder would have been entitled to such amounts if it had presented such units Holder is incorporated, organized, resident or has a permanent establishment for payment on any day within such 30 day period). The “Relevant Date” meanstax purposes, or (2) that Holder's office is located in respect of any paymentamounts received or receivable in that jurisdiction, if that Tax is imposed on or calculated by reference to the income received or receivable by that Holder. Upon request, the date on which such payment first becomes due and payable, but if Issuer shall provide the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given Trustee with documentation satisfactory to the Series 18 Holders;Trustee evidencing the payment of Additional Amounts.
Appears in 1 contract
Sources: Indenture (Ipsco Inc)
Payment of Additional Amounts. i. The Partnership shall make all (a) All payments made by or on behalf of the Series 18 Preferred Units Issuer under or with respect to the Notes or by a Guarantor under or with respect to its Guarantee will be made free and clear of and without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature Taxes imposed or levied by or on behalf of any Taxing Authority in (1) any jurisdiction in which the Issuer or any Guarantor is organized, engaged in business for tax purposes or is otherwise resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which payment is made by or on behalf of the Issuer or any Guarantor or any political subdivision thereof or therein (each, a “Relevant Taxing Jurisdiction”), unless the Issuer or Guarantor is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Issuer or any Guarantor is required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction, unless from any payment made under or with respect to the Notes or the Guarantee of such taxesGuarantor including, feeswithout limitation, dutiespayments of principal, assessments redemption price, purchase price, interest or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredpremium, the Partnership shallIssuer or the relevant Guarantor, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Aas applicable, shall pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every the net payment made to such holders, amount received by each Holder of Notes (including Additional Amounts) after such withholding or deduction (including any of Taxes shall equal the amount the Holder would have received if such withholding Taxes had not been withheld or deduction from such deducted; provided, however, that no Additional Amounts), Amounts shall be equal payable with respect to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account ofTax:
a(1) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed imposed, payable or due but for the fact that existence of any present or former connection between the Holder (or the beneficial owner of, or person ultimately entitled to obtain an interest in, such holder was Notes) and the Relevant Taxing Jurisdiction (including being a residentcitizen, domiciliary resident or national of, or engaged in carrying on a business or maintained maintaining a permanent establishment in, or was being physically present in, the Relevant Taxing Jurisdiction Jurisdiction) other than the mere holding of the Notes or enforcement of rights under such Note or under a Guarantee or the receipt of payments in respect of such Note or a Guarantee;
(2) that would not have been imposed, payable or due but for the failure to satisfy any political subdivision thereof certification, identification or otherwise had some connection with other reporting requirements whether imposed by statute, treaty, regulation or administrative practice as a precondition to exemption from, or reduction in the rate of withholding of, Taxes imposed by the Relevant Taxing Jurisdiction other than (including a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction), but in each case, only to the extent the Holder or beneficial owner is legally eligible to provide such certification or documentation; provided, however, that the Issuer has delivered a written request to the Holder to comply with such requirements at least 30 days prior to the date by reason which such compliance is required;
(3) that would not have been imposed, payable or due if the presentation of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment Notes (where presentation is required required) for payment) more than payment has occurred within 30 days after the Relevant Date date such payment was due and payable or was duly provided for, whichever is later (except to the extent that the holder Holder would have been entitled to Additional Amounts if the Note had been presented on the last day of such amounts if it had presented such units for 30-day period);
(4) that is an estate, inheritance, gift, sales, transfer or personal property Tax;
(5) that is imposed with respect to a Note pursuant to Sections 1471 to 1474 of the U.S. Internal Revenue Code of 1986, as amended as of the Issue Date (and any amended or successor version that is substantially comparable), any current or future regulations or agreements thereunder, official interpretations thereof or any law implementing an intergovernmental agreement relating thereto; or
(6) as a result of a combination of the foregoing clauses (1) through (5).
(c) In addition, Additional Amounts shall not be paid with respect to a payment on any day within Notes to a Holder that is not the beneficial owner of such Notes to the extent that the beneficial owner thereof would not have been entitled to the payment of such Additional Amounts by reason of clauses (1), (2), (3), (4), (5) or (6) above had such beneficial owner been the Holder of such Notes. In addition, Additional Amounts will not be payable with respect to any Tax which is payable otherwise than by withholding from any payment under or in respect of the Notes or any Guarantee.
(d) Whenever in this Indenture or in the Notes there is mentioned, in any context, the payment of amounts based on the principal amount of the Notes or any Guarantee or of principal, interest or of any other amount payable under or with respect to any of the Notes or any Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The Issuer or relevant Guarantor will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or relevant Guarantor will provide documentation reasonably satisfactory to the Trustee and the Paying Agent evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes, as soon as reasonably practicable to the Trustee and the Paying Agent. Such documentation shall be made available to the Holders by the Trustee and the Paying Agent upon reasonable request and will be made available at the offices of the Trustee and the Paying Agent.
(f) The Issuer and the Guarantors shall pay and indemnify the Trustee and the Paying Agent, the Security Agent and the Holders for any present or future stamp, issue, registration, court or documentary taxes, or any other excise or property taxes, charges or levies (including penalties, interest and any other reasonable expenses thereto) which arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance or registration of the Notes or any other document or instrument referred to therein, or the receipt of any payments with respect to or enforcement of, the Notes or any Guarantee.
(g) If the Issuer or relevant Guarantor is obligated to pay Additional Amounts under or with respect to any payment made on any Note or Guarantee, the Issuer or relevant Guarantor shall deliver to the Trustee and the Paying Agent, at least 30 day perioddays prior to the date of such payment, an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable and such other information necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 30 days prior to the relevant payment date, in which case the Issuer or relevant Guarantor may deliver such Officer’s Certificate as promptly as practicable thereafter). The “Relevant Date” means, in respect of any payment, the date on which such payment first becomes due Trustee and payable, but if the full amount of the moneys payable has not been received by the Paying Agent shall be entitled to rely solely on or prior to such due date, it means the first date on which the full amount of Officer’s Certificate as conclusive proof that such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given payments are necessary.
(h) Notwithstanding anything to the Series 18 Holders;contrary contained in this Indenture, the Issuer and the Guarantors may, to the extent required to do so by law, deduct or withhold income or similar taxes imposed by the United States of America from any payments under this Indenture; provided that the foregoing shall not limit the obligation of the Issuer and the Guarantors to pay Additional Amounts as set forth in this Section 4.20.
(i) The provisions of this Section 4.20 shall survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer or any Guarantor is organized, engaged in business for tax purposes, resident for tax purposes and any jurisdiction from or through which such person makes any payment on the Note or Guarantee and or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Global Ship Lease, Inc.)
Payment of Additional Amounts. i. The Partnership (a) All payments made on all Securities and, with respect to any series of Securities to which the provisions of Article Fifteen shall make all payments on apply, the Series 18 Preferred Units Guarantee by the Company, the Guarantor, or a paying agent, as the case may be, shall be made free and clear of and without withholding or deduction at source for, for or on account of, of any present or future taxesincome, feesstamp or other tax, dutiesduty, assessments levy, impost, assessment or other governmental charges charge of whatever a similar nature imposed (collectively, “Taxes”), unless the Company, the Guarantor, or a paying agent, as applicable, is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof. If the Companies, the Guarantor or a paying agent, as applicable, is required to withhold or deduct any amount for or on account of Taxes from any payment made in respect of the Securities or, with respect to any series of Securities to which provisions of Article Fifteen shall apply, the Guarantee levied by or on behalf of any a Relevant Taxing Jurisdiction, unless such taxesthe Companies or the Guarantor, feesas applicable, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, shall pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so such that every the net payment made to amount received by each Holder (including such holdersAdditional Amounts), after such withholding or deduction (including any such withholding or deduction from such Additional Amounts)deduction, shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any less than the amount such Holder would have received if the Taxes had not been withheld or deducted; provided that no Additional Amounts for or on account ofwill be payable with respect to Taxes:
a(1) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that existence of any present or former connection between such holder was Holder or beneficial owner of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (or between a residentfiduciary, domiciliary settlor, beneficiary, member or national shareholder of, or possessor of a power over, such Holder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership or corporation), and such Relevant Taxing Jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or treated as a resident thereof or domiciled thereof or a national thereof or being or having been present or engaged in trade or business therein or maintained having or having had a permanent establishment therein;
(2) that are estate, inheritance, gift, sales, value added, transfer, personal property, wealth or was physically present similar taxes, duties, assessments or other governmental charges;
(3) payable other than by withholding from payments of principal of and premium, if any, or interest, if any, on the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee;
(4) that would not have been imposed but for the failure of the applicable recipient of such payment (or the beneficial owner of the applicable Security) to comply with any certification, identification, information, documentation or other reporting requirement to the extent:
(i) such compliance is required by applicable law or administrative practice or an applicable treaty as a precondition to exemption from, or reduction in, the Relevant Taxing Jurisdiction rate of deduction or withholding of such Taxes; and
(ii) at least thirty (30) days before the first payment date with respect to which such Additional Amounts or Taxes shall be payable, the Companies or the Guarantor, as the case may be, shall have notified such recipient in writing that such recipient shall be required to comply with such requirement;
(5) that would not have been imposed but for the presentation of a Security or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (where presentation is required) for payment on a date more than thirty (30) days after the date on which such payment became due and payable or the date on which payment thereof was duly provided for, whichever occurred later;
(6) that are imposed or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), as of the issue date of the Securities (or any amended or successor version of such sections), any regulations promulgated thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement with respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code (any such taxes, “FATCA Taxes”), and any amounts to be paid on Securities by or on behalf of the Companies will be paid net of any FATCA Taxes imposed or required pursuant thereto;
(7) that would not have been imposed if presentation for payment of the relevant Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (where presentation is required) had been made to a paying agent other than the paying agent to which the presentation was made;
(8) in the case of U.S. dollar-denominated Securities issued by the Company, any taxes imposed by the United States or any political subdivision thereof or otherwise had some connection tax authority therein, including any U.S. withholding and backup withholding taxes; or
(9) any combination of the foregoing clauses (1) through (8); nor shall Additional Amounts be paid with respect to any payment of principal of or premium, if any, or interest, if any, on any Securities or, with respect to any series of Securities to which the Relevant Taxing Jurisdiction provisions of Article Fifteen shall apply, the Guarantee, to any such Holder or beneficial owner who is a fiduciary or a partnership or a beneficial owner who is other than by reason the sole beneficial owner of the mere ownership of, or receipt of such payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except to the extent that the holder a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such Additional Amounts had it been the Holder of the Security. For the avoidance of doubt, no additional amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, shall be payable in respect of any paymentTaxes imposed by any jurisdiction other than a Relevant Taxing Jurisdiction.
(b) If a Company, the Guarantor, or a paying agent, as the case may be, becomes aware that it shall be obligated to pay Additional Amounts pursuant to this Section 4.05 with respect to any payment under or with respect to the Securities of such series or the Guarantee, the Companies, the Guarantor, or the applicable paying agent, as the case may be, shall deliver to the Trustee on a date that is at least thirty (30) days prior to the date of that payment (unless the obligation to pay such Additional Amounts arises after the 30th day prior to that payment date, in which case the Companies, the Guarantor, or the applicable paying agent, shall notify the Trustee promptly thereafter) an Officer’s Certificate of the Companies or the Guarantor, as the case may be, stating the fact that such Additional Amounts shall be payable pursuant to this Section 4.05 and the amount estimated to be so payable. Such Officer’s Certificate must also set forth any other information reasonably necessary to enable the paying agents to pay such Additional Amounts to Holders on which the relevant payment date. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Companies, the Guarantor, or the applicable paying agent, as the case may be, shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment first becomes due of Additional Amounts.
(c) Each of the Companies, the Guarantor, or the applicable paying agent, as the case may be shall make all withholdings and payable, but if deductions required by law of it and shall remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law with respect to payments in respect of the moneys payable has Securities or Guarantees, as the case may be. Upon request, the Companies the Guarantor, or the applicable paying agent, as the case may be, shall provide to the Trustee an official receipt or, if official receipts are not been received obtainable, other documentation reasonably satisfactory to the Trustee evidencing the payment of any Taxes so deducted or withheld. Upon request, copies of those receipts or other documentation, as the case may be, shall be made available by the Paying Agent Trustee to the Holders of such Securities.
(d) All references in this Indenture, other than in Articles Twelve or Thirteen, to the payment of the principal of or premium, if any, or interest, if any, on or prior the net proceeds received on the sale or exchange of, any Securities or as applicable, with respect to such due datethe Guarantee, it means shall be deemed to include Additional Amounts to the first date on extent that, in that context, Additional Amounts are, were or would be payable.
(e) The obligations of the Companies and, with respect to any series of Securities to which the full amount provisions of Article Fifteen shall apply, the Guarantor, to pay Additional Amounts if and when due shall survive the termination of this Indenture and the payment of all other amounts in respect of the Securities and any transfer by a Holder or beneficial owner of its Securities of such moneys having been so received series and being available shall apply mutatis mutandis to any jurisdiction in which any successor Person to a Company, the Guarantor, or the applicable paying agent, as the case may be, is incorporated or resident for tax purposes or any jurisdiction from or through which such Person makes any payment to holders on the Guarantees and notice to that effect shall have been duly given to the Series 18 Holders;any department or political subdivision thereof or therein.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership shall make all All payments on by the Series 18 Preferred Units Issuer in respect of the Notes and the Indenture and by the Guarantor in respect of the Guarantee and the Indenture will be made free and clear of and without deduction or withholding or deduction at source for, for or on account of, of any present or future taxes, fees, duties, assessments assessments, fees or other governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf of Luxembourg, the Russian Federation, any Relevant jurisdiction from or through which a payment is made or any political subdivision or taxing authority thereof or therein (each, a “Taxing Jurisdiction”), unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredrequired by law. If the Issuer is required to make any withholding or deduction for or on account of any Taxes from any payment made under or with respect to the Notes, or if the Guarantor is required to make any withholding or deduction for or on account of any Taxes imposed by a Taxing Jurisdiction from any payment made under or with respect to the Guarantee, the Partnership shallIssuer will pay (or, subject in respect of the Guarantee, the Guarantor will pay) as additional interest to any Holder of the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders Notes such additional amounts (the “Additional Amounts”) as distributions as may be necessary so in order that every net payment made to by the Issuer on such holders, Note or by the Guarantor on the Guarantee after such deduction or withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
aof any Taxes will not be less than the amount then due and payable on such Note or the Guarantee. The foregoing obligation to pay Additional Amounts, however, will not apply to any (i) any tax, fee, duty, assessment or governmental charge of whatever nature Taxes that would not have been imposed but for the fact that existence of any present or former connection between such holder was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, Holder of the Relevant Taxing Jurisdiction or Notes and any political subdivision thereof or otherwise had some connection with the Relevant Taxing Jurisdiction other than by reason of the mere ownership of, or receipt of such payment underor the ownership or holding of such Note, (ii) Taxes that would not have been imposed but for the Series 18 Preferred Units or any Series 18 Preferred Units presented presentation by the Holder of such Note for payment (where presentation is required for payment) on a date more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment first becomes became due and payable or the date on which payment thereof is duly provided for, whichever occurs later, (iii) Taxes required to be deducted or withheld by any Paying Agent from a payment on a Note or the Guarantee, if such payment can be made without deduction or withholding by any other Paying Agent, (iv) Taxes that would not have been imposed but for the failure of the Holder to comply with the Issuer’s written request addressed to the Holder at least 60 days prior to the relevant payment to provide information with respect to any reasonable certification, documentation, information or other reporting requirement concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of the Holder of such Note, (v) Taxes imposed on a payment to an individual that are required to be made pursuant to any European Union Directive on the taxation of savings implementing the conclusion of the ECOFIN Council meeting of 26-27 November 2000 or any law implementing or complying with, or introduced in order to conform to, such Directive and (vi) estate, inheritance, gift, sale or excise tax. The Guarantee also applies to Additional Amounts payable by the Issuer. The Issuer or the Guarantor, as the case may be, shall make any such withholding or deduction for or on account of Taxes and shall remit the full amount deducted or withheld to the relevant authority in accordance with the applicable law. The Issuer or the Guarantor, as the case may be, shall furnish to the Holders of Notes that are outstanding on the date of the required payment within 30 days after the date the payment of any Taxes is due pursuant to applicable law, certified copies of tax receipts evidencing that such payment has been made by the Issuer or the Guarantor, as the case may be. The Issuer and the Guarantor shall indemnify and hold harmless each Holder on the date of the required payment of any Taxes and upon written request reimburse each such Holder for the amount of (i) any Taxes (other than net income taxes) so levied or imposed and paid by such Holder as a result of payments made under or with respect to the outstanding Notes or the Guarantee, (ii) any liability (other than any liability relating to any net income taxes) (including penalties, interest and expense) arising therefrom or with respect thereto, and (iii) any Taxes imposed with respect to any reimbursement under clause (i) or (ii) above. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Guarantee is due and payable, but if the full Issuer or the Guarantor, as the case may be, becomes obligated to pay Additional Amounts with respect to such payment, the Issuer or the Guarantor, as the case may be, shall deliver to the Trustee (and each Paying Agent other than the Trustee) an Officer’s Certificate certifying that the Issuer will make a withholding or deduction for or on account of Taxes and remit the same to the relevant authority, attesting to the fact that such Additional Amounts will be payable and the amounts so payable, and setting forth such other information as is necessary to enable the Trustee to pay such Additional Amounts to the Holders on the payment date. Whenever in this Indenture there is mentioned, in any context, the payment of principal, interest (including Defaulted Interest) or any other amount payable on or with respect to any of the moneys payable has not been received by Notes or the Paying Agent on or prior Guarantee, such reference shall be deemed to such due date, it means include mention of the first date on which the full amount payment of such moneys having been so received and being available Additional Amounts provided for payment to holders and notice to that effect shall have been duly given in this Section 4.11 to the Series 18 Holders;extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section 4.11, and express mention of the payment of Additional Amounts in certain provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made. The Issuer and the Guarantor, jointly and severally, hereby covenant to indemnify the Trustee (and each other Paying Agent) (which shall include their respective directors, officers, employees and agents) for, and to hold it harmless against any loss, liability or reasonable expenses incurred without gross negligence, bad faith or willful misconduct on such Person’s part, arising out of or in connection with actions taken or omitted by any of them in reliance on any Officer’s Certificate furnished pursuant to this Section 4.11 or the failure of the Trustee (or other Paying Agent) for any reason (other than its own gross negligence, bad faith or willful misconduct) to receive on a timely basis such Officer’s Certificate. The obligations of the Issuer and the Guarantor under this Section 4.11 shall survive the resignation or removal of the Trustee or any Paying Agent, the termination of the Indenture and the payment of all amounts under or with respect to this Indenture, the Notes and the Guarantee.
Appears in 1 contract
Sources: Indenture (Mobile Telesystems Ojsc)
Payment of Additional Amounts. i. The Partnership shall make all (a) All payments made by or on behalf of the Series 18 Preferred Units Issuer under or with respect to the Notes or any of the Guarantors under or with respect to its Notes Guarantee will be made free and clear of of, and without deduction or withholding or deduction at source for, for or on account of, any present or future taxes, feesduties, dutieslevies, imposts, deductions, withholdings, assessments or governmental other similar charges of whatever nature (including interest, penalties and other liabilities with respect thereto) that are imposed by any government or taxing authority (collectively, “Taxes”), unless such withholding or deduction is required by law.
(b) In the event any such withholding or deduction for, or on account of, any Taxes imposed or levied by or on behalf of any Relevant Taxing Jurisdictionjurisdiction in which the Issuer or any Guarantor, unless such taxesis then incorporated, feesorganized, dutiesengaged in business for tax purposes or a resident for tax purposes, assessments or any political subdivision or governmental charges are authority thereof or therein having power to tax or any jurisdiction from or through which payment is made by or on behalf of the Issuer or any Guarantor (each, a “Tax Jurisdiction”), will at any time be required to be withheld made from any payments made by or deducted by (i) on behalf of the laws (Issuer under or with respect to the Notes or any regulations of the Guarantors with respect to any Notes Guarantee, including payments of principal, redemption price, purchase price, interest or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredpremium, the Partnership shallIssuer or the relevant Guarantor, as applicable, will, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Adescribed below, pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every net payment made to will result in receipt by each beneficial owner of a Note of such holders, amounts (including payments of Additional Amounts) after all such withholding or deduction (including any such withholding or deduction from such Additional Amounts)deduction, shall be equal to the amounts the Partnership as would otherwise have been required to pay received by such beneficial owner had no such withholding or deduction been required.
ii. The Partnership shall Issuer or any Guarantor will not be required required, however, to pay make any payment of Additional Amounts for or on account ofof any of the following:
a(i) any tax, fee, duty, assessment or governmental charge of whatever nature Tax that would not have been imposed but for (1) the fact existence of any present or former connection (other than a connection arising from the acquisition, ownership or holding of those Notes or Notes Guarantees or the enforcement or receipt of payments under or in respect of those Notes or Notes Guarantees) between a Holder (or the beneficial owner for whose benefit such Holder holds such Note), or between a fiduciary, settlor, beneficiary of, member or shareholder or other equity owner of, or possessor of a power over, that Holder or beneficial owner (if that Holder or beneficial owner is an estate, trust, partnership, corporation or other entity) (each, a “Beneficial Holder”) and the relevant Tax Jurisdiction in which such holder was Taxes are imposed (collectively, “Other Connection Taxes”), (2) a resident, domiciliary Beneficial Holder being a citizen or resident or national of, or being engaged in trade or business in or maintained having a permanent establishment in the relevant Tax Jurisdiction, (3) the failure of a Beneficial Holder to comply with any written request, made to that Beneficial Holder in writing at least 60 days before any such withholding or was physically present indeduction would be payable, by the Relevant Taxing Jurisdiction Issuer or any political subdivision thereof or otherwise had some connection with the Relevant Taxing Jurisdiction other than by reason of the mere ownership ofGuarantors to provide certification, information, documentation or receipt other reporting requirements concerning the nationality, residence or identity of payment underthe beneficial owner or Holder that such beneficial owner or Holder is legally able to comply with, which is required or imposed by a statute, treaty, regulation or administrative practice of the Series 18 Preferred Units relevant Tax Jurisdiction as a precondition to exemption from such Taxes or any Series 18 Preferred Units presented (4) the presentation of a Note for payment (where presentation is required for payment) on a date more than 30 days after the Relevant Date (later of the date on which that payment becomes due and payable and the date on which payment is duly provided for, except to the extent that the holder Beneficial Holder would have been entitled to such amounts if it had presented Additional Amounts on presenting such units for payment Note on any day within date during such 30 day 30‑day period;
(ii) any estate, inheritance, gift, sales, transfer, personal property or similar Tax;
(iii) any Tax that is payable otherwise than by withholding or deducting from payment made under or with respect to the Notes or any Notes Guarantee;
(iv) any Tax required to be withheld or deducted under Sections 1471 through 1474 of the Code (or any amended or successor version of such Sections that is substantively comparable) (“FATCA”). The “Relevant Date” means, any regulations or other guidance thereunder, or any agreement (including any intergovernmental agreement) entered into in connection therewith; or any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA or an intergovernmental agreement in respect of FATCA;
(v) Tax pursuant to the Luxembourg law of 23 December 2005, as amended; or
(vi) any paymentcombination of items (i), (ii), (iii), (iv) and (v); nor will the Issuer or any Guarantor pay any Additional Amounts to any Beneficial Holder of Notes who is a fiduciary or partnership or person other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to that fiduciary or a member of that partnership or a beneficial owner thereof would not have been entitled to the payment of those Additional Amounts had that beneficiary, settlor, member or beneficial owner been the Beneficial Holder of those Notes.
(c) In addition to the foregoing, the date Issuer and the Guarantors will pay and indemnify the Holder or beneficial owner of a Note for any present or future stamp, issue, registration, transfer, court or documentary Taxes, or any other excise, property or similar Taxes levied by any jurisdiction on which such payment first becomes due and payableor in connection with the execution, but if the full amount delivery, registration or enforcement of any of the moneys Notes, any Notes Guarantee or any other document or instrument referred to therein, or the receipt of any payments with respect thereto (limited, solely in the case of Taxes attributable to the receipt of any payments with respect thereto, to any such Taxes imposed in a relevant Tax Jurisdiction that are not excluded under clauses (b)(i), (b)(ii) and (b)(iv) or any combination thereof), excluding any present or future stamp, issue, registration, transfer, court, documentary or similar Taxes payable has before the Registration, Estates and VAT Department (Administration de l'enregistrement, des domaines et de la TVA) in Luxembourg in case of voluntary registration of any document or instrument referred to herein or therein when such registration is not been received by required to maintain, preserve or enforce the rights of the Holder or beneficial owner of a Note under such document; provided further, however, notwithstanding the foregoing, the Issuer and Guarantors will have no obligation to pay or indemnify any Holder or beneficial owner for any such Taxes that are Other Connection Taxes imposed with respect to an assignment of a Note.
(d) If the Issuer or any Guarantor, as the case may be, becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or any Notes Guarantee, the Issuer or the relevant Guarantor, as the case may be, will deliver to the Trustee and the Paying Agent on or a date at least 30 days prior to such due the date of payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, it means in which case the first date Issuer or the relevant Guarantor shall notify the Trustee and the Paying Agent promptly thereafter) an Officers’ Certificate of the Company stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officers’ Certificate of the Company must also set forth any other information reasonably necessary to enable the Paying Agent to pay Additional Amounts on which the relevant payment date. The Trustee and the Paying Agent shall be entitled to rely solely on such Officers’ Certificate of the Company as conclusive proof that such payments are necessary. The Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts.
(e) The Issuer or the relevant Guarantor will make all withholdings and deductions required by law and will remit the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given deducted or withheld to the Series 18 Holders;relevant Tax authority in accordance with applicable law. The Issuer or the relevant Guarantor will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor will furnish to the Trustee, within 60 days after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Issuer or a Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments by such entity.
(f) Whenever this Indenture mentions the payment of amounts based on the principal amount, interest of any other amount payable under, or with respect to, any of the Notes or any Notes Guarantee, such mention shall be deemed to include the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(g) The above obligations will survive any termination, defeasance or discharge of this Indenture, any transfer by a Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is then incorporated, organized, engaged in business or resident for tax purposes or any jurisdiction from or through which any payment under, or with respect to, the Notes (or any Notes Guarantee) is made by, or on behalf of, such Person and any political subdivision or taxing authority or agency thereof or therein having the power to tax.
Appears in 1 contract
Sources: Indenture (Pra Group Inc)
Payment of Additional Amounts. i. The Partnership (a) All payments made by the Issuer or the Note Guarantors under, or with respect to, the Notes shall make all payments on the Series 18 Preferred Units be made free and clear of of, and without withholding or deduction at source for, for or on account of, of any present or future taxestax, feesduty, dutieslevy, assessments impost, assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of any Relevant the United States, Mexico, Spain, the Netherlands, France, the United Kingdom, Switzerland or, in the event that the Issuer appoints additional paying agents, by the jurisdictions of such additional paying agents (a “Taxing Jurisdiction”), unless the Issuer or such taxesNote Guarantor, feesas the case may be, duties, assessments or governmental charges are is required to be withheld withhold or deducted deduct Taxes by law or by the official interpretation or administration thereof.
(ib) If the laws (Issuer or any regulations Note Guarantor is so required to withhold or rulings promulgated thereunder) of deduct any Relevant Taxing Jurisdiction for amount for, or on account of, such Taxes from any payment made under or with respect to the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredNotes, the Partnership shallIssuer or such Note Guarantor, subject to as the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Acase may be, shall pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every the net payment made to such holders, amount received by each Holder (including Additional Amounts) after such withholding or deduction (including any shall not be less than the amount such withholding or deduction from Holder would have received if such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have Taxes had not been required to pay had no such withholding be withheld or deduction been required.
ii. The Partnership shall not be required deducted; provided, however, that the foregoing obligation to pay any Additional Amounts for or on account ofdoes not apply to:
a(i) any tax, fee, duty, assessment Taxes imposed solely because at any time there is or governmental charge of whatever nature that would not have been imposed but for the fact that such holder was a resident, domiciliary or national of, or engaged in business or maintained connection between the Holder and 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 by reason the mere purchase of the mere ownership ofNotes, or receipt of a payment underor the ownership or holding of the Notes),
(ii) any estate, inheritance, gift, sales, transfer, personal property or similar Tax imposed with respect to the Notes,
(iii) any Taxes imposed solely because the Holder or any other person fails to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with a Taxing Jurisdiction of the Holder or any beneficial owner of the Note if compliance is required by the applicable law of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of, the Series 18 Preferred Units tax, assessment or other governmental charge, and the Issuer has given the Holders at least 30 days’ notice that Holders shall be required to provide such information and identification,
(iv) any Taxes payable otherwise than by deduction or withholding from payments on the Notes,
(v) any Taxes imposed on a payment to or for the benefit of an individual pursuant to European Council Directive 2003/48/EC (as amended from time to time) or any Series 18 Preferred Units presented law implementing or complying with, or introduced in order to conform to, such Directive,
(vi) any Taxes that would have been avoided by presenting for payment (where presentation is required required) the relevant Note to another Paying Agent,
(vii) any Taxes with respect to such Note presented for payment) payment more than 30 days after the Relevant Date (date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the holder Holders of such Note would have been entitled to such amounts if it had presented Additional Amounts on presenting such units Note for payment on any day within date during such 30 day period), or
(viii) any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note.
(c) The obligations in Section 3.21(a) and Section 3.21(b) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The “Relevant Date” meansIssuer or such Note Guarantor, as applicable, shall (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer or such Note Guarantor, as applicable, furnish such other documentation that provides reasonable evidence of such payment by the Issuer or such Note Guarantor, as applicable.
(d) The exception to the Issuer’s obligations to pay Additional Amounts pursuant to clause (iii) of Section 3.21(b) will not apply if (i) the provision of information, documentation or other evidence described in such clause would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulation (including proposed regulations) and administrative practice, or (ii) Article 166, Section II, paragraph (a), of the Mexican Income Tax Law (Ley del Impuesto Sobre la Renta) (or a substitute or equivalent provision) is in effect, unless (A) the provision of the information, documentation or other evidence described in clause (iii) of Section 3.21 (b) is expressly required by the applicable Mexican laws and regulations in order to apply Article 166, Section II, paragraph (a), of the Mexican Income Tax Law (or substitute or equivalent provision), (B) the Issuer or any Note Guarantor cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican laws and regulations on its own through reasonable diligence and (C) the Issuer or any Note Guarantor would not otherwise meet the requirements for application of the applicable Mexican laws and regulations.
(e) Clause (iii) of Section 3.21(b) does not require, and shall not be construed to require, that any holder, including any non-Mexican pension fund, retirement fund, tax-exempt organization or financial institution, register with the Tax Management Service (Servicio de Administración Tributaria) or the Mexican Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) to establish eligibility for an exemption from, or a reduction of, Mexican withholding taxes.
(f) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Issuer shall be deemed also to refer to any paymentAdditional Amount that may be payable with respect to that amount under the obligations referred to in this subsection. Payment of any Additional Amounts with respect to interest shall be considered as an interest payment under, or with respect to, the date Notes.
(g) The Issuer will ensure that it maintains a paying agent, in a European Union Member State, that will not be obliged to withhold or deduct tax pursuant to European Council Directive 2003/48/EC (as amended from time to time) or any law implementing or complying with, or introduced in order to conform to, such Directive.
(h) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 3.21 are based on which such payment first becomes due and payable, but if the full amount rates of deduction or withholding of withholding taxes in excess of the moneys payable has not been received by appropriate rate applicable to the Paying Agent on or prior to such due date, it means the first date on which the full amount Holder of such moneys having been so received Notes, and being available as a result thereof such Holder is entitled to make a claim for payment a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, and without any further action, be deemed to holders have assigned and notice transferred all right, title and interest to that effect shall have been duly given any such claim for a refund or credit of such excess to the Series 18 Holders;Issuer. However, by making such assignment, the Holder makes no representation or warranty that the Issuer shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
Appears in 1 contract
Sources: Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. i. The Partnership shall make all (a) All payments on by the Series 18 Preferred Units free and clear Company in respect of and the Notes or the Guarantors in respect of the Note Guarantees will be made without withholding or deduction at source for, for or on account of, of any present or future taxes, fees, duties, assessments assessments, or other governmental charges of whatever nature imposed or levied by or on behalf of the Company’s, a Guarantor’s or any successor’s jurisdiction of incorporation or the jurisdiction in which central management or control of the Company, such Guarantor or such successor, as applicable, is exercised, or in or through which payments are made in respect of the Notes or the Note Guarantees or, in each case, any political subdivision or governmental authority therein (each a ‘‘Relevant Taxing Jurisdiction’’), unless the Company, such Guarantor or such successor is compelled by law to deduct or withhold such taxes, feesduties, assessments, or governmental charges. In such event, the relevant payor will make such deduction or withholding, make payment of the amount so withheld to the appropriate governmental authority and pay such additional amounts (the ‘‘Additional Amounts’’) as may be necessary to ensure that the net amounts receivable by holders of Notes after such withholding or deduction shall equal the respective amounts of principal and interest (and premium, if any) which would have been receivable in respect of the Notes in the absence of such withholding or deduction. No such Additional Amounts shall be payable:
(1) to, or to a third party on behalf of, a Holder or beneficial owner who is liable for such taxes, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) in respect of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every net payment made to such holders, after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
a) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder 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 Note by reason of the mere ownership ofexistence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of such Holder, if such Holder is an estate, a trust, a partnership, or a corporation) or beneficial owner and the Relevant Taxing Jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member or shareholder) or beneficial owner being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein, other than the mere holding of the Note or enforcement of rights and the receipt of payment under, payments with respect to the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment Note;
(where presentation 2) in respect of Notes surrendered (if surrender is required for paymentrequired) more than 30 days after the Relevant Date (except to the extent that payments under such Note would have been subject to withholding and the holder Holder or beneficial owner of such Note would have been entitled to such amounts if it had presented Additional Amounts, on surrender of such units Note for payment on any the last day within of such period of 30 day period). The “Relevant Date” means, days;
(3) in respect of any tax that is imposed on a payment to an individual and is required to be made pursuant to any law implementing or complying with, or introduced in order to conform to, the European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings income;
(4) to, or to a third party on behalf of, a Holder or beneficial owner who is liable for such taxes, duties, assessments or other governmental charges by reason of such Holder’s or beneficial owner’s failure to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or a successor jurisdiction or applicable political subdivision or authority thereof or therein having power to tax, of such Holder or beneficial owner, if (a) compliance is required by such jurisdiction, or any political subdivision or authority thereof or therein having power to tax, as a precondition to, exemption from, or reduction in the rate of, the tax, duty, assessment or other governmental charge and (b) the Company or any Guarantor has given the Holders at least 30 days’ notice that Holders will be required to provide such certification or identification or comply with such other requirement;
(5) in respect of any estate, inheritance, gift, sales, transfer, excise or personal property or similar tax, assessment or governmental charge;
(6) in respect of any tax, assessment or other governmental charge which is payable other than by deduction or withholding from payments of principal of, premium, if any, or interest on the Note or by direct payment by the Company or any Guarantor in respect of claims made against the Company or any Guarantor; or
(7) in respect of any combination of the above.
(b) The Company will at all times during the term of the Notes, while there is a Paying Agent in Luxembourg, maintain a Paying Agent in a European Union jurisdiction which does not impose a withholding tax or deduction on payments in accordance with Council Directive 2003/48/EC or any other European Union directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings income.
(c) No Additional Amounts shall be paid with respect to any payment on a Note to a Holder who is a fiduciary, a partnership, a limited liability company or other than the sole beneficial owner of that payment to the extent that payment would be required by the laws of the Relevant Taxing Jurisdiction, or any political subdivision thereof to be included in the income, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of the partnership, an interest holder in the limited liability company or a beneficial owner who would not have been entitled to the Additional Amounts had that beneficiary, settlor, member, interest holder or beneficial owner been the Holder. The Company or applicable Guarantor, as the case may be, will provide the Trustee and Paying Agent with the official acknowledgement of the Relevant Taxing Jurisdiction (or, if such acknowledgement is not available, other reasonable documentation) evidencing the payment of any taxes, duties, assessments or other government charges in respect of which the Company or such Guarantor, as the case may be, has paid any Additional Amounts. Copies of such documentation will be made available by the Trustee to the Holders or beneficial owners of the Notes, as applicable, upon request therefor.
(d) At least 30 days prior to each date on which any payment under or with respect to the Notes is due and payable (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Company or applicable Guarantor, as the case may be, will be obligated to pay Additional Amounts with respect to such payment, the date on which Company will deliver to the Trustee and Paying Agent an Officer’s Certificate stating the fact that such payment first becomes due Additional Amounts will be payable and payable, but if the full amount of the moneys amounts so payable has not been received by and will set forth such other information necessary to enable the Paying Agent to remit such Additional Amounts to Holders of Notes on the payment date. Each such Officer’s Certificate shall be relied upon until receipt of a new Officer’s Certificate addressing such matters.
(e) The Company will pay any stamp, issue, excise, property, registration, documentary or prior other similar taxes and duties, including interest and penalties, imposed by a Relevant Taxing Jurisdiction in respect of the creation, issue, delivery, registration and offering of the Notes or the execution of the Notes, the Note Guarantees or this Indenture. The Company will also pay and indemnify each of the Trustee, the Paying Agent and the Holders and beneficial owners of the Notes from and against all court taxes or other taxes and duties, including interest and penalties, paid by any of them in any jurisdiction in connection with any action permitted to such due datebe taken by the Holders and beneficial owners to enforce the Company’s obligations under the Notes.
(f) Any reference in this Indenture or the Notes to principal, it means interest or any other amount payable in respect of the first date on which Notes by the full amount of such moneys having been so received and being available for payment Company or the Note Guarantees by any Guarantor will be deemed also to holders and notice refer to any Additional Amount, unless the context requires otherwise, that may be payable with respect to that effect amount under the obligations referred to in this Section 4.18.
(g) The obligations of this Section 4.18 shall have been duly given to survive the Series 18 Holders;termination or discharge of this Indenture.
Appears in 1 contract
Sources: Senior Secured Notes Indenture (Kosmos Energy Ltd.)
Payment of Additional Amounts. i. (a) The Partnership shall Company will make all payments on under the Series 18 Preferred Units free and clear of and Notes without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or similar governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, (“Taxes”) unless such taxes, fees, duties, assessments or governmental charges Taxes are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units taxing jurisdiction or (ii) an any official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including including, without limitation, a holding by a court of competent jurisdiction or by a taxing authority in any Relevant Taxing Jurisdictiona taxing jurisdiction). If a any such withholding or deduction at source is requiredrequired with respect to any Tax imposed or levied by any Relevant Taxing Jurisdiction, the Partnership shallCompany will, subject to the certain limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Adescribed below, pay to the Series 18 Holders each holder of any Notes such additional amounts (the “Additional Amounts”) as distributions as may be necessary necessary, if any, so that every net payment of principal, premium, if any, interest or any other amount made to such holdersholder under the Notes, after such withholding or deduction deduction, will equal the amount provided for in the Indenture to be then due and payable (including any such withholding or deduction from such additional amounts, “Additional Amounts”), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall (b) Notwithstanding the foregoing, the Company will not be required to pay any Additional Amounts for or on account of:
a(i) any tax, fee, duty, assessment or governmental charge of whatever nature that Tax which would not have been imposed but for the fact that such the applicable holder or beneficial owner of a Note (1) is or was a resident, domiciliary or national of, engages or engaged in business in, maintains or maintained a permanent establishment in, or is or was physically present in, the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise had some other present or former connection with the Relevant Taxing Jurisdiction other than by reason of the mere ownership of, or receipt of payment under, such Note, (2) presented such Note for payment in the Series 18 Preferred Units or any Series 18 Preferred Units Relevant Taxing Jurisdiction, unless such Note could not have been presented for payment elsewhere, or (where presentation is required 3) presented such Note for payment) payment more than 30 days after the Relevant Date (date on which the payment in respect of such Note became due and payable or provided for, whichever is later, except to the extent that the holder would have been entitled to such amounts Additional Amounts if it had presented such units Note for payment on any day within that 30‑day period;
(ii) any estate, inheritance, gift, net worth, wealth, sale, gains, excise, value added transfer, personal property or similar Tax;
(iii) any Tax that is imposed or withheld by reason of the failure by the holder or beneficial owner of such 30 day period). The “Note to comply with any reasonable request by the Company addressed to the holder within 90 days of such request (1) to provide information concerning the nationality, residence or identity of such holder or such beneficial owner or (2) to make any declaration or other similar claim or satisfy any information or reporting requirement, which is required or imposed by statute, treaty, regulation or administrative practice of the Relevant Date” meansTaxing Jurisdiction as a precondition to an exemption from, or reduction in, such Tax;
(iv) any Tax that is imposed other than by means of withholding in respect of payments made under a Note;
(v) any paymentwithholding or deduction imposed pursuant to current Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (or any amended or successor version thereof), any current or future regulations promulgated thereunder or official interpretations thereof, any intergovernmental agreements, treaties or conventions in connection therewith (or any laws, regulations or official administrative guidance implementing such agreements, treaties or conventions), and any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code of 1986, as amended (or any amended or successor version thereof); or
(c) any combination of items (i), (ii), (iii), (iv) and (v) above. In addition, the Company will not pay Additional Amounts with respect to any holder who is a fiduciary or partnership or otherwise not the sole beneficial owner of such Note to the extent that a beneficiary, partner or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such Additional Amounts had it been the holder of such Note. In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to the Indenture in effect from time to time (“Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Company agrees to provide to the Trustee and the Paying Agent information about the parties and/or transactions (including any modification to the terms of such transactions) reasonably requested by the Trustee to allow the Trustee or the Paying Agent to determine whether it has Tax-related obligations under Applicable Law. The obligations described in this Section 5.2 will survive any termination, defeasance or discharge of the Indenture. Prior to the date on which the payment of any Additional Amounts are due, the Company will deliver to the Trustee an Officer’s Certificate stating that such payment first becomes due Additional Amounts will be payable on the applicable Payment Date and payable, but if setting forth the full amount of amounts so payable and any other information necessary to enable the moneys payable has not been received by the Trustee (or applicable Paying Agent on or prior Agent) to pay such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment Additional Amounts to holders and notice on the Payment Date. Any such Officer’s Certificate will be delivered at least two Business Days in advance of when the payments in question are required to that effect shall have been duly given be made (unless a shorter period of time is acceptable to the Series 18 Holders;Trustee in its reasonable discretion).
Appears in 1 contract
Sources: Second Supplemental Indenture (Arch Capital Group Ltd.)
Payment of Additional Amounts. i. (a) The Partnership Company is required by Mexican law to deduct and to withhold certain Taxes from payments of interest and amounts deemed interest to investors who are not residents of Mexico for tax purposes, and shall make all pay to any Holder such additional amounts (“Additional Amounts”) on those payments on to the Series 18 Preferred Units free and clear of and without withholding extent described in this Section 3.13. To the extent Taxes imposed by Mexico or deduction at source for, any political subdivision or on account of, any present taxing authority thereof or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges therein (“Mexican Taxes”) are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units or (ii) an official position regarding the application, administration, interpretation or enforcement of from any such laws, regulations or rulings (including a holding by a court of competent jurisdiction or by a taxing authority in any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredpayment, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, Company shall pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions Amounts as may be necessary so to ensure that every the net payment made to amount actually received by such holders, Holder after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be is equal to the amounts amount that the Partnership Holder would otherwise have been required to pay received had no such withholding or deduction been required.
ii. The Partnership , provided, however, that no such Additional Amounts shall not be payable in respect of any such Mexican Taxes required to pay be deducted, withheld or otherwise imposed above the amount resulting from a withholding tax rate in Mexico of 4.9% (resulting in a maximum applicable gross-up of approximately 5.1525% of the stated amount of the relevant payment). Any reference in this Indenture or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Company shall be deemed also to refer to any Additional Amounts that may be payable with respect to such amounts under the obligations referred to in this Section 3.13.
(b) The Company shall not pay Additional Amounts to any Holder for or on account ofof any of the following:
a(i) any Taxes imposed solely because of the existence of any present or former connection between such Holder and Mexico (other than the mere receipt of a payment or the ownership or holding of a Note);
(ii) any estate, inheritance, gift, sales, transfer or similar tax, fee, duty, assessment or other governmental charge of whatever nature that would not have been imposed but for with respect to the fact that Notes;
(iii) any Taxes imposed solely because the Holder or any other Person fails to comply with any certification, identification, information, documentation or other reporting requirement if (1) such holder was compliance is required by law, regulation, administrative practice or an applicable treaty as a residentprecondition to exemption from, domiciliary or national reduction in the rate of, deduction or engaged in business withholding of any Taxes for which the Company is required to pay Additional Amounts and (2) at least 30 days prior to the first Interest Payment Date or maintained a permanent establishment or was physically present inChange of Control Payment Date with respect to which the Company shall apply this clause (iii), the Relevant Taxing Jurisdiction or Company shall have notified the Holder that the Holder shall be required to comply with such requirement;
(iv) any political subdivision thereof or Taxes that are payable otherwise had some connection with the Relevant Taxing Jurisdiction other than by reason of deduction or withholding from payments on the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or Notes;
(v) any Series 18 Preferred Units Taxes with respect to such Note presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the holder Holders of such Note would have been entitled to such amounts if it had presented Additional Amounts on presenting such units Note for payment on any day within date during such 30 30-day period); and
(vi) any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder.
(c) Upon request, the Company shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of any Taxes deducted or withheld. The “Relevant Date” means, in respect Company shall make copies of any payment, such documentation available to the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by Holders or the Paying Agent upon request.
(d) In the event that Additional Amounts actually paid with respect to the Notes pursuant to the preceding paragraphs are based on rates of deduction or prior withholding of withholding taxes in excess of the appropriate rate applicable to such due date, it means the first date on which the full amount Holder of such moneys having been so received Notes, and, as a result thereof, such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, be deemed to have assigned and being available transferred all right, title and interest to any such claim for payment to holders and notice to that effect shall have been duly given a refund or credit of such excess to the Series 18 Holders;Company. However, by making such assignment, the Holder makes no representation or warranty that the Company shall be entitled to receive such claim for a refund or credit and Incurs no other obligation with respect thereto (including Incurring any expenses whatsoever necessary to obtain such refund).
(e) In the event of any merger or other transaction described and permitted under Article IV that results in a Surviving Entity that is a U.S. or E.U. Country Person, then all references to Mexico, Mexican law or regulations, and Mexican taxing authorities under this Section 3.13 shall be deemed to also include the United States or relevant E.U. Country, as the case may be, and any political subdivision therein or thereof, United States or relevant E.U. Country law or regulations, and any taxing authority of the United States or the relevant E.U. Country or any political subdivision therein or thereof, respectively.
Appears in 1 contract
Sources: Indenture (Grupo Iusacell Sa De Cv)
Payment of Additional Amounts. i. The Partnership (a) All payments made by the Issuer or the Note Guarantors under, or with respect to, the Notes shall make all payments on the Series 18 Preferred Units be made free and clear of of, and without withholding or deduction at source for, for or on account of, of any present or future taxestax, feesduty, dutieslevy, assessments impost, assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of any Relevant Mexico, Spain, the Netherlands, France, the United Kingdom, the United States, Switzerland or, in the event that the Issuer appoints additional paying agents, by the jurisdictions of such additional paying agents (a “Taxing Jurisdiction”), unless the Issuer or such taxesNote Guarantor, feesas the case may be, duties, assessments or governmental charges are is required to be withheld withhold or deducted deduct Taxes by law or by the official interpretation or administration thereof.
(ib) If the laws (Issuer or any regulations Note Guarantor is so required to withhold or rulings promulgated thereunder) of deduct any Relevant Taxing Jurisdiction for amount for, or on account of, such Taxes from any payment made under or with respect to the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredNotes, the Partnership shallIssuer or such Note Guarantor, subject to as the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Acase may be, shall pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every the net payment made to such holders, amount received by each Holder (including Additional Amounts) after such withholding or deduction (including any shall not be less than the amount such withholding or deduction from Holder would have received if such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have Taxes had not been required to pay had no such withholding be withheld or deduction been required.
ii. The Partnership shall not be required deducted; provided, however, that the foregoing obligation to pay any Additional Amounts for or on account ofdoes not apply to:
a(i) any tax, fee, duty, assessment Taxes imposed solely because at any time there is or governmental charge of whatever nature that would not have been imposed but for the fact that such holder was a resident, domiciliary or national of, or engaged in business or maintained connection between the Holder and 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 by reason the mere purchase of the mere ownership ofNotes, or receipt of a payment underor the ownership or holding of a Note),
(ii) any estate, inheritance, gift, sales, transfer, personal property or similar Tax imposed with respect to the Notes,
(iii) any Taxes imposed solely because the Holder or any other person fails to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with a Taxing Jurisdiction of the Holder or any beneficial owner of the Note if compliance is required by the applicable law of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of, the Series 18 Preferred Units tax, assessment or other governmental charge, and the Issuer has given the Holders at least 30 days’ notice that Holders shall be required to provide such information and identification; provided, however, this clause (iii) shall not apply if the provision of information, documentation or other evidence described in this clause (iii) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of the Notes than comparable information or other reporting requirements imposed under U.S. tax law, regulation (including proposed regulations) and administrative practice,
(iv) any Taxes payable otherwise than by deduction or withholding from payments on the Notes,
(v) any Taxes imposed on a payment to or for the benefit of an individual pursuant to European Council Directive 2003/48/EC or any Series 18 Preferred Units presented other directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 or any law implementing or complying with, or introduced in order to conform to, such directives,
(vi) any Taxes that would have been avoided by presenting for payment (where presentation is required required) the relevant Note to another Paying Agent,
(vii) any Taxes with respect to such Note presented for payment) payment more than 30 days after the Relevant Date (date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the holder Holders of such Note would have been entitled to such amounts if it had presented Additional Amounts on presenting such units Note for payment on any day within date during such 30 day period), and
(viii) any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note.
(c) The obligations in Section 3.21(a) and Section 3.21(b) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The “Relevant Date” meansIssuer or such Note Guarantor, as applicable, shall (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer or such Note Guarantor, as applicable, furnish such other documentation that provides reasonable evidence of such payment by the Issuer or such Note Guarantor, as applicable.
(d) The exception to the Issuer’s obligations to pay Additional Amounts pursuant to clause (iii) of Section 3.21(b) will not apply with respect to taxes imposed by Mexico or any political subdivision or taxing authority thereof if the Issuer can otherwise obtain the application of the lower withholding tax rate in effect, unless (i) the provision of the information, documentation or other evidence described in the applicable clause of Section 3.21(b) is expressly required by statute, regulation or published administrative practice of general applicability, (ii) the Issuer cannot obtain the information, documentation or other evidence necessary to comply with the applicable laws and regulations on its own through reasonable diligence and without requiring such information, documentation or other evidence necessary from holders of the Notes and (iii) the Issuer otherwise would meet the requirements set forth under applicable law and regulations. In addition, clause (iii) of Section 3.21(b) does not and shall not be considered to require that any person, including any non-Mexican pension fund, retirement fund, financial institution or any other holder or beneficial owner of a Note, register with the Mexican Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) or the Mexican Tax Revenue Service (Servicio de Administración Tributaria) to obtain eligibility for an exemption from, or a reduction of, Mexican withholding tax.
(e) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Issuer shall be deemed also to refer to any paymentAdditional Amount that may be payable with respect to that amount under the obligations referred to in this subsection.
(f) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 3.21 are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, and without any further action, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to us. However, by making such assignment, the date on which Holder makes no representation or warranty that the Issuer shall be entitled to receive such payment first becomes due claim for a refund or credit and payable, but if the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;incurs no other obligation with respect thereto.
Appears in 1 contract
Sources: Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. i. The Partnership shall Company will make all payments on of principal of, and premium (if any) and interest on, the Series 18 Preferred Units free and clear Notes of and any series without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf within Luxembourg, any jurisdiction in which ArcelorMittal is resident for tax purposes or, in the case of a successor entity, any jurisdiction in which such successor entity is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Partnership shallCompany or any successor entity, subject as the case may be, will make such deduction or withholding, make payment of the amount so withheld to the limitations appropriate governmental authority and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, will pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every net payment made to will result in the receipt by the Holders of such holders, after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership that would otherwise have been required to pay received by such Holders had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any by the Relevant Jurisdiction, except that no Additional Amounts will be payable:
(a) for or on account of:
a(i) any tax, fee, duty, assessment or other governmental charge of whatever nature that would not have been imposed but for for:
(A) the fact that existence of any present or former connection between the Holder or beneficial owner of such holder was Note, as the case may be, and the Relevant Jurisdiction including, without limitation, such Holder or beneficial owner being or having been a resident, domiciliary citizen or national of, resident of such Relevant Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or maintained having or having had a permanent establishment or was physically present intherein, the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise had some connection with the Relevant Taxing Jurisdiction other than by reason merely holding such Note or receiving payments thereunder;
(B) the presentation of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment such Note (where presentation is required for paymentrequired) more than 30 days after the Relevant Date later of the date on which the payment of the principal of, or premium (if any) or interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for, except to the extent that the holder Holder thereof would have been entitled to such amounts Additional Amounts if it had presented such units Note for payment on any day date within such 30 30-day period). The “;
(C) the failure of the Holder or beneficial owner to comply with a timely and reasonable request of the Company or any successor entity addressed to the Holder or beneficial owner, as the case may be, to provide information, documentation and certification concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with any Relevant Date” meansJurisdiction, if and to the extent that due and timely compliance with such request would under applicable law, regulation or administrative practice have reduced or eliminated any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(D) the presentation of such Note (where presentation is required) for payment in the Relevant Jurisdiction, unless such Note could not have been presented for payment elsewhere;
(ii) any estate, inheritance, gift, sale, transfer, excise or personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge that is payable other than by deduction or withholding from a payment on or in respect of a Note;
(iv) any paymenttax, assessment or other governmental charge imposed by the date on which Foreign Account Tax Compliance Act pursuant to sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to section 1471(b) of the Code and any intergovernmental agreements (and related legislation or official administrative guidance) implementing the foregoing; or
(v) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (i), (ii), (iii) and (iv); or
(b) with respect to any payment of the principal of, or premium (if any) or interest on, such Note to a Holder who is a fiduciary, partnership or Person other than the sole beneficial owner of any payment to the extent that such payment first becomes due would be required to be included in the income under the laws of a Relevant Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner, or beneficial owner been the Holder thereof. Whenever there is mentioned in any context the payment of principal of, and payableany premium or interest on, but if any Note, such mention will be deemed to include payment of Additional Amounts provided for in the full amount Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. For the avoidance of doubt, in no event shall either of the moneys payable has not been received by Trustee or the Paying Agent on Securities Administrator have any duty, responsibility or prior obligation to such due dateconfirm, it means verify or otherwise review any calculation or other determination in connection with Additional Amounts or any other possible make-whole premiums, and neither the first date on which Trustee nor the full amount of such moneys having been so received and being available for payment to holders and notice to that effect Securities Administrator shall have been duly given any liability in connection with, related to the Series 18 Holders;or arising out of any such calculations or determinations.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership (a) All payments and deliveries made by the Company or any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, the 2016 Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of Ordinary Shares (together with payments of cash for any fractional Ordinary Shares, if applicable) upon conversion, shall make all payments on the Series 18 Preferred Units free and clear of and be made without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of within any jurisdiction in which the Company or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Partnership shall, subject Company or any successor to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, Company shall pay to the Series 18 Holders each Holder such additional amounts (the “Additional Amounts”) as distributions as may be necessary so to ensure that every the net payment made to such holders, amount received by the beneficial owner after such withholding or deduction (including and after deducting any such withholding or deduction from such taxes on the Additional Amounts), ) shall be equal to the amounts the Partnership that would otherwise have been required to pay received by such beneficial owner had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any ; provided that no Additional Amounts shall be payable:
(i) for or on account of:
a(A) any tax, fee, duty, assessment or other governmental charge of whatever nature that would not have been imposed but for for:
(i) the fact that existence of any present or former connection between the relevant Holder or beneficial owner of such holder was Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a residentnational, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the resident of such Relevant Taxing Jurisdiction or any political subdivision treated as a resident thereof or otherwise being or having been physically present or engaged in a trade or business therein or having or having had some connection with a permanent establishment therein;
(ii) the Relevant Taxing Jurisdiction other than by reason presentation of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment such Note (where in cases in which presentation is required for paymentrequired) more than 30 days after the later of the date on which the payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, the 2016 Repurchase Price, if applicable and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for; or
(iii) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such ▇▇▇▇▇▇’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Date (except Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the holder Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(B) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(C) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(D) any withholding or deduction that is imposed or levied on a payment to an individual pursuant to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) or (D); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, the 2016 Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such amounts if it Additional Amounts had presented such units that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) Any reference in this Indenture or the Notes in any context to the delivery of Ordinary Shares (together with payments of cash for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment first becomes due and payable, but if the full amount fractional Ordinary Shares) upon conversion of the moneys Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable has not been received by the Paying Agent on or prior with respect to such due dateNote, it means shall be deemed to include any Additional Amounts, unless the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice context requires otherwise, that are or may be payable with respect to that effect amount under the obligations referred to in this Section 5.10.
(c) The foregoing obligations shall have been duly given to the Series 18 Holders;survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (Sina Corp)
Payment of Additional Amounts. i. The Partnership shall make all All payments on made by the Series 18 Preferred Units Issuer, UtiliCorp, and any other Guarantor under or with respect to the Securities and the Guarantees will be made free and clear of and without withholding or deduction at source for, for or on account of, of any present or future taxes, feesduties, dutieslevies, imposts, assessments or governmental charges of whatever nature ("TAXES"), imposed or levied by or on behalf of any Relevant Taxing Jurisdictionlaws or regulations of Canada or any political subdivision or taxing authority thereof or therein having the power to tax (a "TAXING AUTHORITY"), unless the Issuer, UtiliCorp or such taxesGuarantor, feesas the case may be, duties, assessments or governmental charges are is required to be withheld withhold or deducted deduct Taxes by (i) law or by the laws (interpretation or administration thereof. In the event that the Issuer, UtiliCorp or such Guarantor is required to so withhold or deduct any regulations amount for or rulings promulgated thereunder) on account of any Relevant Taxing Jurisdiction for Taxes from any payment made under or with respect to the Series 18 Preferred Units Securities or (ii) an official position regarding the applicationGuarantees, 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredas the case may be, the Partnership shallIssuer, subject to UtiliCorp or such Guarantor, as the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Acase may be, will pay to the Series 18 Holders such additional amounts (the “Additional Amounts”"ADDITIONAL AMOUNTS") as distributions as may be necessary so that every the net payment made to such holders, amount received by each Holder of Securities (including Additional Amounts) after such withholding or deduction (including any will equal the amount that such withholding or deduction from Holder would have received if such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have Taxes had not been required to pay had be withheld or deducted; PROVIDED that no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
a) any tax, fee, duty, assessment or governmental charge will be payable with respect to a payment made to a Holder of whatever nature that would not have been imposed but for the fact that such holder 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 by reason of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except Securities to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;extent: 62
Appears in 1 contract
Sources: Indenture (Utilicorp United Inc)
Payment of Additional Amounts. i. The Partnership shall make all (a) All payments on ----------------------------- made by the Series 18 Preferred Units Company and any Subsidiary Guarantor under or with respect to the Notes (including payments in respect of Special Interest, if any) will be made free and clear of of, and without withholding or deduction at source for, for or on account of, any present or future taxestax, feesduty, dutieslevy, assessments impost, assessment or governmental charges of whatever nature other government charge (including penalties, interest or other liabilities related thereto) imposed or levied by or on behalf of the government of the Netherlands or any Relevant Taxing Jurisdictionpolitical subdivision or taxing authority or agency thereof or therein or any other jurisdiction in which the Company is organized or engaged in business for tax purposes ("Taxes"), unless the Company or any such taxesSubsidiary Guarantor, feesas the case may be, duties, assessments or governmental charges are is required to be withheld withhold or deducted deduct Taxes by (i) law or by the laws (interpretation or administration thereof. If the Company or any regulations such Subsidiary Guarantor, as the case may be, is required to withhold or rulings promulgated thereunder) deduct any amount for or on account of Taxes, from any Relevant Taxing Jurisdiction for payment made under or with respect to the Series 18 Preferred Units Notes, the Company or (ii) an official position regarding the application, administration, interpretation or enforcement of any such lawsSubsidiary Guarantor, regulations or rulings (including a holding by a court of competent jurisdiction or by a taxing authority in any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredas the case may be, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, will pay to the Series 18 Holders such additional amounts (the “"Additional Amounts”") as distributions as may be necessary so that every the net payment made to such holders, amount received by each Holder of Notes (including Additional Amounts) after such withholding or deduction (including any will not be less than the amount the Holder would have received if such withholding Taxes had not been withheld or deduction from such Additional Amounts), shall be equal to deducted; provided that the amounts the Partnership would otherwise have been required foregoing obligation to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
does not apply to (a) any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, the relevant holder, if the relevant holder is an estate, nominee, trust or corporation) and the Netherlands or any political subdivision or taxing authority or agency thereof or therein or any other jurisdiction in which the Company is organized or engaged in business for tax purposes (other than the mere receipt of such payment or the ownership or holding outside of the Netherlands or such other jurisdiction of such Note or fulfillment of any certification, identification or other reporting requirements referred to in clause (d) of this Section 4.20(a)); (b) any estate, inheritance, gift, sales, transfer, personal property tax or similar tax, fee, duty, assessment or governmental charge charge; (c) any Taxes payable otherwise than by deduction or withholding from payments of whatever nature principal of (or premium, if any, on) or interest on such Note or (d) any Taxes that would not have been imposed but for the fact that such holder was a residentfailure of the holders to satisfy any certification, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the Relevant Taxing Jurisdiction identification or any political subdivision thereof other reporting requirement whether imposed by statute, treaty, regulation or otherwise had some connection administrative practice, provided that the Company has delivered a request to the holders to comply with such requirement at least 30 days prior to the Relevant Taxing Jurisdiction other than by reason date such compliance is required; nor will Additional Amounts be paid (i) if the payment could have been made without such deduction or withholding if the beneficiary of the mere ownership of, or receipt of payment under, had presented the Series 18 Preferred Units or any Series 18 Preferred Units presented Note for payment (where presentation is required for payment) more than within 30 days after the Relevant Date date on which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the holder Holder would have been entitled to such amounts if it Additional Amounts had the Note been presented such units for payment on any the last day within of such 30 day period), or (ii) with respect to any payment of principal of (or premium, if any, on) or interest on such Note to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note. If the Company conducts business in any jurisdiction (the "Taxing Jurisdiction") other than the Netherlands in a manner which causes Holders to be liable for taxes on payments under the Notes for which they would not have been so liable but for such conduct of business in the Taxing Jurisdiction, "Taxes" shall include taxes imposed by way of deduction or withholding by such Taxing Jurisdiction and the Company's and any Subsidiary Guarantor's obligations to pay Additional Amounts shall apply without regard to whether Holders or beneficial owners have a present or former connection with such Taxing Jurisdiction or any prefecture or territory thereof.
(b) The foregoing provisions of this Section 4.20 shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Company is organized or any political subdivision or taxing authority or agency thereof or therein.
(c) The Company or any Subsidiary Guarantor will also (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The “Relevant Date” meansCompany or any Subsidiary Guarantor will furnish to the Holders of the Notes, within 30 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company, CompleTel Escrow B.V. or any Subsidiary Guarantor.
(d) At least 30 days prior to each date on which any payment under or with respect to the Notes is due and payable unless such obligation to pay Additional Amounts arises after the 30th day prior to such date, in which case it shall be promptly paid thereafter, if the Company or any Subsidiary Guarantor, as the case may be, will be obligated to pay Additional Amounts with respect of any to such payment, the date Company or any Subsidiary Guarantor will deliver to the Trustee and the Principal Paying Agent an Officers' Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the Trustee and the Principal Paying Agent to pay such Additional Amounts to Holders of Notes on the payment date. Each Officers' Certificate shall be relied upon until receipt of a further Officers' Certificate addressing such matters. The Company will cause a copy of such notice to be published in a daily newspaper with general circulation in Luxembourg (which is expected to be the Luxemburger Wort).
(e) Whenever in this Indenture there is mentioned, in any context, the payment of principal, premium, if any, interest or of any other amount payable under or with respect to any Note, such payment first becomes due and payable, but if the full amount mention shall be deemed to include mention of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount payment of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given Additional Amounts to the Series 18 Holders;extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The foregoing obligations relating to Additional Amounts shall survive any termination, defeasance or discharge of this Indenture.
(f) The Company will not take any voluntary action that results in its obligation to pay Additional Amounts.
Appears in 1 contract
Sources: Indenture (Comple Tel Europe Nv)
Payment of Additional Amounts. i. (a) The Partnership Company shall make pay any amounts due with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction or withholding for any and all payments on present and future withholding taxes, levies, imposts and charges (a “withholding tax”) imposed by or for the Series 18 Preferred Units free and clear account of and without the Cayman Islands, Switzerland or any other jurisdiction in which either the Company or a Guarantor is a resident for tax purposes or any political subdivision or taxing authority of such jurisdiction (the “Taxing Jurisdiction”), unless such withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied is required by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction)law. If a such deduction or withholding or deduction is at source is any time required, the Partnership shallCompany or such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX holder
of Schedule Aa Security with any relevant administrative requirements), pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions in respect of principal amount, redemption price and interest (if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so that every the net payment made amounts paid to such holders, the holder or the Trustee after such deduction or withholding or deduction will equal the principal amount, redemption price and interest (including any such withholding or deduction from such Additional Amountsif any), shall be equal to on the amounts Securities. However, neither the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to Company nor any Guarantor will pay any Additional Amounts for or on account ofin the following instances:
a(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction other than the holding or ownership of the Security or the collection of principal amount, redemption price, repurchase price and interest (if any), in accordance with the terms of the Securities and this Indenture, or the enforcement of the Security or (ii) where presentation is required, the Security was presented more than 30 days after the date such payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;
(3) if any withholding tax is attributable to any tax, feelevy, dutyimpost or charge which is payable otherwise than by withholding from payment of principal amount, assessment or governmental charge of whatever nature that redemption price, repurchase price and interest (if any);
(4) if any withholding tax would not have been imposed but for the fact that failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the relevant tax authority of the holder or beneficial owner of the Security, if this compliance is required by statute or by regulation as a precondition to relief or exemption from such withholding tax;
(5) to the extent a holder was of a residentSecurity is entitled to a refund or credit in such Taxing Jurisdiction of amounts required to be withheld by such Taxing Jurisdiction;
(6) if any withholding is required to be made pursuant to laws enacted by Switzerland providing for the taxation of payments according to principles similar to those laid down in the draft legislation of the Swiss Federal Council of December 17, domiciliary or national of2014, or engaged otherwise changing the Swiss federal withholding tax system from an issuer-based system to a paying‑agent‑based system pursuant to which a person other than the issuer is required to withhold tax on any interest payments;
(7) if any withholding tax or deduction is required to be made in business respect of any tax, duty, assessment or maintained a permanent establishment other governmental charge imposed or was physically present inwithheld pursuant to Sections 1471 through 1474 of the Code, as of the Relevant Taxing Jurisdiction date hereof (or any political subdivision thereof amended or otherwise had some successor version), current or future U.S. Treasury Regulations issued thereunder or any official interpretation thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the Relevant Taxing Jurisdiction implementation of such Sections of the Code; or
(8) any combination of the instances described in the preceding clauses.
(b) With respect to clause (a)(5) above, in the absence of evidence satisfactory to the Company or the applicable Guarantor, it may conclusively presume that a holder of a Security is entitled to a refund or credit of all amounts required to be withheld. The Company or the applicable Guarantor also will not pay any Additional Amounts to any holder who is a fiduciary or partnership or other than by reason the sole beneficial owner of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except Security to the extent that the holder a beneficiary or settlor with respect to such fiduciary, or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such amounts if it Additional Amounts had presented such units for payment on any day within such 30 day period). The “Relevant Date” meansbeneficiary, in respect of any paymentsettlor, member or beneficial owner been the date on which such payment first becomes due and payable, but if the full amount holder of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;Security.
Appears in 1 contract
Sources: Indenture (Transocean Ltd.)
Payment of Additional Amounts. i. The Partnership All interest amounts payable in respect of the Notes shall make all payments on the Series 18 Preferred Units free and clear of and be made without deduction or withholding or deduction at source for, for or on account of, of any present or future taxes, fees, duties, assessments duties or governmental charges of whatever any nature whatsoever imposed or levied by way of deduction or withholding by or on behalf of any Relevant Taxing Jurisdictionthe Tax Jurisdiction (“Withholding Taxes”), unless such taxes, fees, duties, assessments deduction or governmental charges are withholding is required to be withheld or deducted by (i) law. In the laws (or any regulations or rulings promulgated thereunder) event of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredon payments of interest (but not in respect of the payment of any principal in respect of the Notes), the Partnership Issuer shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Afullest extent permitted by law, pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may will be necessary so in order that every the net payment made to such holdersamounts received by the Holders, after such withholding or deduction (including for or on account of any Withholding Taxes imposed upon or as a result of such withholding or deduction from such Additional Amounts)payment by the Tax Jurisdiction, shall be will equal to the respective amounts the Partnership which would otherwise have been required to pay had no receivable in the absence of such withholding or deduction; except that no such Additional Amounts shall be payable on account of any taxes, duties or governmental charges which:
(a) are payable by any person acting as custodian bank or collecting agent on the Holder’s behalf, or otherwise in any manner which does not constitute a deduction been required.or withholding by the Issuer from payments of interest made by the Issuer; or
ii. The Partnership shall (b) would not be required payable to pay the extent such deduction or withholding could be avoided or reduced if the Holder or beneficial owner of the Note (or any Additional Amounts financial institution through which the Holder or beneficial owner holds the Notes or through which payment on the Note is made) (i) makes a declaration of non-residence or other similar claim for exemption to the relevant tax authority or on account of:
acomplies with any reasonable certification, documentation, information or other reporting requirement imposed by the relevant tax authority or (ii) enters into or complies with any taxapplicable certification, feeidentification, dutyinformation, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder was a residentdocumentation, domiciliary or national ofregistration, or engaged in business other reporting requirement or agreement concerning accounts maintained a permanent establishment by the Holder or was physically present inbeneficial owner (or such financial institution) or concerning ownership of the Holder or beneficial owner (or financial institution) or concerning such Holder’s or beneficial owner’s (or such financial institution’s) nationality, the Relevant Taxing Jurisdiction residence, identity or any political subdivision thereof or otherwise had some connection with the Relevant Taxing Jurisdiction other than jurisdiction imposing such tax; or
(c) are payable by reason of the mere ownership ofHolder’s having, or receipt having had, some personal or business connection with the Federal Republic of payment underGermany and not merely by reason of the fact that payments in respect of the Notes are, or for purposes of taxation are deemed to be, derived from sources in, or are secured in, the Series 18 Preferred Units or any Series 18 Preferred Units Federal Republic of Germany; or
(d) are presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except to the extent that the holder Holder would have been entitled to such amounts if it had presented such units Additional Amounts on presenting the same for payment on any the last day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not period of 30 days assuming that day to have been received a Business Day; or
(e) are withheld or deducted in relation to a Note that is presented for payment by or on the Holder’s behalf if it would have been able to avoid such withholding or deduction by presenting the relevant Note to another paying agent in a member state of the European Union; or
(f) are deducted or withheld by the Paying Agent on from a payment if the payment could have been made by another paying agent without such deduction or prior to such due datewithholding; or
(g) would not be payable if the Notes had been kept in safe custody with, it means and the first date on which payments had been collected by, a banking institution; or
(h) are payable by reason of a change in law or practice that becomes effective more than 30 days after the full amount relevant payment of such moneys having been so received and being available interest becomes due, or is duly provided for payment to holders and notice thereof is given in accordance with Section 11.04 of the Base Subordinated Indenture, whichever occurs later. Moreover, all amounts payable in respect of the Notes shall be made subject to that effect compliance with Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986 (the “Code”), or any regulations or other official guidance promulgated thereunder, official interpretations thereof, or any applicable agreement entered into in connection therewith (including any agreement, law, regulation, or other official guidance implementing such agreement) (commonly referred to as the “Foreign Account Tax Compliance Act” or “FATCA”) and any applicable agreement described in Section 1471(b) of the Code. The Issuer shall have been duly given no obligation to pay Additional Amounts or otherwise indemnify a Holder in connection with any such compliance with the Series 18 Holders;Code.
Appears in 1 contract
Sources: Fourth Supplemental Subordinated Indenture (Deutsche Bank Aktiengesellschaft)
Payment of Additional Amounts. i. The Partnership shall make all (a) All payments on by the Series 18 Preferred Units free and clear Issuer in respect of and the Securities will be made without withholding or deduction at source for, for or on account of, of any present or future taxes, fees, duties, assessments assessments, fees or other governmental charges of whatever nature and any fines, penalties or interest related thereto (collectively, “Taxes”) imposed or levied by or on behalf of the Cayman Islands or Brazil or, following any Relevant merger, consolidation, transfer, liquidation, winding-up, dissolution or assumption of obligations permitted hereunder, the jurisdiction in which the resulting, surviving or transferee Person is incorporated, resident for tax purposes or treated as engaged in business, or, in each case, any political subdivision thereof or taxing authority therein (each, a “Taxing Jurisdiction”), unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredrequired by law. In that event, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, Issuer will pay to the Series 18 Holders each holder such additional amounts (the “Additional Amounts”) as distributions as may be necessary so in order that every net payment made to such holders, by the Issuer on the Securities after such deduction or withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account ofof any present or future Tax that would have been imposed upon or as a result of such payment by the Taxing Jurisdiction will not be less than the amount then due and payable on such Securities without such withholding or deduction. The foregoing obligation to pay Additional Amounts, however, will not apply to:
a(i) any tax, fee, duty, assessment or governmental charge of whatever nature that Tax which would not have been imposed but for the fact that existence of any present or former connection between a Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of such holder was Holder, if such Holder is an estate, a residenttrust, domiciliary a partnership or national ofa corporation) or beneficial owner, on the one hand, and the Taxing Jurisdiction, on the other hand, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member or shareholder) or beneficial owner being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein or having, or engaged in business or maintained having had, a permanent establishment or was physically present intherein, the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise had some connection with the Relevant Taxing Jurisdiction other than by reason of but not including the mere ownership of, or receipt of such payment under, or the Series 18 Preferred Units ownership or holding of such Securities;
(ii) any Series 18 Preferred Units presented Tax which would not have been so imposed but for the presentation by such Holder for payment (where presentation is required for paymentrequired) on a date more than 30 thirty calendar days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment first becomes became due and payable, but if payable or the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been thereof is duly given to the Series 18 Holdersprovided for, whichever occurs later;
Appears in 1 contract
Sources: Indenture
Payment of Additional Amounts. i. (a) The Partnership shall Company or, if applicable, each Guarantor (pursuant to the terms of the applicable Guarantee) (each, a “Payor”) will make all payments of, or in respect of, principal, premium (if any) and interest on the Series 18 Preferred Units Notes, or any payment pursuant to the Guarantees, as the case may be, free and clear of and without withholding or deduction at source for, for or on account of, of any present or future taxestax, feesduty, dutieslevy, assessments impost, assessment or other governmental charges of whatever nature imposed charge (including penalties, interest, and other liabilities related thereto) whatsoever imposed, assessed, levied or levied collected (“Taxes”) by or on behalf for the account of Bermuda, the United Kingdom or any other jurisdiction in which the Company or any Guarantor is organized, or resident for tax purposes, engaged in business for tax purposes or through which payment is made (or any political subdivision thereof or any authority thereof having the power to tax) (a “Relevant Taxing Jurisdiction”), unless such taxes, fees, duties, assessments withholding or governmental charges are deduction is required to be withheld by law or deducted by the official interpretation or administration thereof.
(ib) the laws (or any regulations or rulings promulgated thereunder) of any If a Payor is required by a Relevant Taxing Jurisdiction for to deduct or withhold Taxes from any payment of principal, premium (if any) and interest on the Series 18 Preferred Units Notes, 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject payments pursuant to the limitations and exceptions set forth in this Section 2(C)(eGuarantees, as the case may be, such Payor will pay (together with such payments) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every the net payment made to amount received in respect of such holderspayments by the holder of such Note, after such deduction or withholding or deduction (including any such deduction or withholding or deduction from in respect of such Additional Amounts)) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership however, that a Payor shall not be required to pay any Additional Amounts Amount for or on account of:
a(1) any tax, fee, duty, assessment or governmental charge of whatever nature Taxes that would not have been imposed so imposed, assessed, levied or collected but for the fact that such the holder was or beneficial owner of the applicable Note or Guarantee (or a residentfiduciary, domiciliary settlor, beneficiary, member or national shareholder of, or possessor of a power over, such holder, if such holder is an estate, trust, partnership or corporation) is or has been a domiciliary, national or resident of, or engaging or having been engaged in a trade or business or maintaining or having maintained a permanent establishment or was being or having been physically present in, the a Relevant Taxing Jurisdiction or any political subdivision thereof otherwise having or otherwise having had some connection with the a Relevant Taxing Jurisdiction other than by reason of the mere holding or ownership of, or receipt the collection of payment underprincipal of, and premium (if any) or interest on, a Note or the Series 18 Preferred Units enforcement of the applicable Guarantee, as the case may be;
(2) any Taxes that would not have been so imposed, assessed, levied or any Series 18 Preferred Units presented collected but for payment (the fact that, where presentation is required for in order to receive payment) , the applicable Note or Guarantee was presented more than 30 days after the Relevant Date (date on which such payment became due and payable or was provided for, whichever is later except to the extent that the holder or beneficial owner thereof would have been entitled to Additional Amounts had the applicable Note or Guarantee been presented for payment on any day during such 30 day period;
(3) any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(4) any Taxes that are payable otherwise than by deduction or withholding from payments on or in respect of the applicable Note or Guarantee;
(5) any Taxes that would not have been so imposed, assessed, levied or collected but for the failure by the holder or the beneficial owner of the applicable Note or Guarantee to comply with a written request addressed to the holders (A) to provide any certification, identification, information, documents or other evidence concerning the nationality, residence or identity of the holder or the beneficial owner or its connection with the Relevant Taxing Jurisdiction or (B) to make any valid or timely declaration or claim or satisfy any other reporting, information or procedural requirements relating to such matters if, in either case, compliance is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction as a condition to relief or exemption from such Taxes;
(6) any withholding or deduction imposed on a payment to or secured for the benefit of an individual that is required to be made pursuant to Council Directive 2003/48/EC or Council Directive 2014/48/EU on the taxation of savings income in the form of interest payment or any other Directive on the taxation of savings implementing the conclusions of the Economic and Financial Affairs Council meeting of November 26-27, 2000, or any other law implementing or complying with, or introduced in order to conform to these directives;
(7) any withholding or deduction that is imposed on the applicable Note or Guarantee that is presented for payment, where presentation is required, by or on behalf of a holder who would have been able to avoid such withholding or deduction by presenting the relevant Note or Guarantee to another paying agent in a member state of the European Union (including; for the avoidance of doubt, any replacement directive or law);
(8) any deduction or withholding arising on or in connection with FATCA; and
(9) any combination of the Taxes described in (1) through (8) above.
(c) In addition, Additional Amounts will not be paid with respect to any payment of the principal of, or any interest on, any of the applicable Notes or Guarantees to any holder of the applicable Notes or Guarantees that is a fiduciary, a partnership, a limited liability company or any person other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of a Relevant Taxing Jurisdiction to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary, a member of such partnership, an interest holder in such limited liability company or a beneficial owner that would not have been entitled to such amounts if it had presented such units for payment on beneficiary, settlor, member, interest holder or beneficial owner been the holder of the relevant Notes or Guarantees.
(d) The Payor will (i) make any day within such 30 day period)required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The “Payor will use reasonable efforts to obtain certified copies of tax receipts or such other reasonable evidence of the payment of any Taxes so deducted or withheld from each Relevant Date” meansTaxing Jurisdiction imposing such Taxes. The Payor will furnish to the Trustee (or to a holder upon written request), within a reasonable time after the date of the payment of any Taxes so deducted or withheld is made, such certified copies or proof of payment. The Payor will attach a certificate stating (x) that the amount of withholding Taxes evidenced by the certified copy or other proof of payment was paid in connection with payments in respect of any paymentthe principal amount of Notes then outstanding and (y) the amount of such withholding Taxes paid per $1,000 principal amount of the Notes. Copies of such documentation will be available for inspecting during ordinary business hours at the office of the Trustee by the holders of the Notes upon written request and will be made available at the offices of the Paying Agent.
(e) As soon as reasonably practicable, prior to each Record Date preceding the related Interest Payment Date and each date on which such any other payment first becomes under or with respect to the Notes or the Guarantee thereof is due and payable, but if the full amount of Payor will be obligated to pay Additional Amounts with respect to such payment, the moneys Payor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable has not been received by and will furnish such other information necessary to enable the Paying Agent to pay such Additional Amounts to holders on the payment date. Each such Officer’s Certificate shall be relied upon until receipt of a further Officer’s Certificate addressing such matters. Neither the Trustee nor the Paying Agent shall have any responsibility or liability for the determination, verification or calculation of any Additional Amounts. Such Officer’s Certificate may be forwarded by the Trustee to the registered holder and also upon written request to any holder.
(f) Unless otherwise stated, references in any context to the payment of principal of, and any premium or interest on, any Note, other payment on or prior with respect to the Notes or any payment pursuant to the Guarantees, will be deemed to include payment of Additional Amounts to the extent that, in such due datecontext, it means Additional Amounts are, were or would be payable in respect thereof.
(g) The Payor will pay any present or future stamp, court or documentary taxes, or any other excise or property taxes, charges or similar levies which arise in any jurisdiction from the first date on which execution, delivery, registration or enforcement following the full amount occurrence of any event of default of any Notes or any other document or instrument referred to therein for the avoidance of doubt, no Payor shall be responsible for the payment or other discharge of such moneys taxes, charges, or levies that arise as a result of or, in connection with, any transfer, assignment or the disposition of the Notes (or any rights attaching thereto) by any holder.
(h) The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a Payor is organized or any political subdivision thereof or any authority thereof or therein having been so received and being available for payment the power to holders and notice to that effect shall have been duly given to the Series 18 Holders;tax.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership All payments of principal, premium, if any, and interest on Securities of any series shall make all payments on the Series 18 Preferred Units be made without set-off, counterclaim, fees, liabilities or similar deductions, and free and clear of of, and without deduction or withholding or deduction at source for, or on account of, any present or future taxes, feeslevies, imposts, duties, assessments charges or governmental charges fees of whatever whatsoever nature imposed now or levied hereafter imposed, levied, collected, deducted, withheld or assessed by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (Commonwealth of Puerto Rico or any regulations political subdivision or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdictionthereof or therein ("Taxes"). If a the Company or any agent thereof is required by law or regulation to make any deduction or withholding for or deduction at source is requiredon account of Taxes, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, Company shall pay to the Series 18 Holders such additional amounts (the “"Additional Amounts”") as distributions as may shall be necessary so in order that every the net payment made to such holders, amounts received by the Holders of the Securities of any series or the holders or beneficial owners of any interest therein or rights in respect thereof after such deduction or withholding shall equal the amount that would have been receivable thereunder in the absence of such deduction or deduction (including any such withholding or deduction from withholding, except that no such Additional Amounts), Amounts shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account ofpayable:
(a) to any tax, fee, duty, assessment Holder of a Security or governmental charge any interest therein or rights in respect thereof where such deduction or withholding is required by reason of whatever nature such Holder having some connection with the Commonwealth of Puerto Rico or any political subdivision or taxing authority thereof or thereon other than the mere holding of a payment in respect of such security;
(b) in respect of any deduction or withholding that would not have been imposed required but for the fact that such holder was presentation by the Holder of 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 by reason of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented Security for payment (where presentation is required for payment) on a date more than 30 days after the Relevant Date of Maturity or the date on which payment thereof is duly provided for, whichever occurs later; or
(except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, c) in respect of any paymentdeduction or withholding that would not have been required but for the failure to comply with any certification, identification or other reporting requirements concerning the date on which such payment first becomes due and payablenationality, but if residence, identity or connection with the full amount Commonwealth of Puerto Rico, or any political subdivision or taxing authority thereof or therein, of the moneys payable has not been received Holder of a Security or any interest therein or rights in respect thereof, if compliance is required by the Paying Agent on Commonwealth of Puerto Rico, or prior any political subdivision or taxing authority thereof or therein, as a precondition to exemption from such due date, it means deduction or withholding. Any reference in the first date on which the full amount of such moneys having been so received and being available for payment Indenture to holders and notice principal or interest shall be deemed also to refer to any Additional Amounts that effect shall have been duly given to the Series 18 Holders;may be payable under this Section 1010.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership (a) All payments made by the Issuer or the Note Guarantors under, or with respect to, the Notes shall make all payments on the Series 18 Preferred Units be made free and clear of of, and without withholding or deduction at source for, for or on account of, of any present or future taxestax, feesduty, dutieslevy, assessments impost, assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of any Relevant Spain, Luxembourg, Mexico the Netherlands, the British Virgin Islands or, in the event that the Issuer appoints additional paying agents, by the jurisdictions of such additional paying agents (a “Taxing Jurisdiction”) unless the Issuer or such Note Guarantor, unless such taxesas the case may be, fees, duties, assessments or governmental charges are is required to be withheld withhold or deducted deduct Taxes by law or by the official interpretation or administration thereof.
(ib) If the laws (Issuer or any regulations Note Guarantor is so required to withhold or rulings promulgated thereunder) of deduct any Relevant Taxing Jurisdiction for amount for, or on account of, such Taxes from any payment made under or with respect to the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredNotes, the Partnership shallIssuer or such Note Guarantor, subject to as the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Acase may be, shall pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every the net payment made to such holders, amount received by each Holder (including Additional Amounts) after such withholding or deduction (including any shall not be less than the amount such withholding or deduction from Holder would have received if such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have Taxes had not been required to pay had no such withholding be withheld or deduction been required.
ii. The Partnership shall not be required deducted; provided, however, that the foregoing obligation to pay any Additional Amounts for or on account ofdoes not apply to:
a(i) any tax, fee, duty, assessment Taxes imposed solely because at any time there is or governmental charge of whatever nature that would not have been imposed but for the fact that such holder was a resident, domiciliary or national of, or engaged in business or maintained connection between the Holder and 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 by reason the mere purchase of the mere ownership ofNotes, or receipt of a payment underor the ownership or holding of a Note),
(ii) any estate, inheritance, gift, sales, transfer, personal property or similar Tax imposed with respect to the Notes,
(iii) any Taxes imposed solely because the Holder or any other person fails to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with a Taxing Jurisdiction of the Holder or any beneficial owner of the Note if compliance is required by the applicable law of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of, the Series 18 Preferred Units tax, assessment or other governmental charge and we have given the Holders at least 30 days’ notice that Holders shall be required to provide such information and identification,
(iv) any Series 18 Preferred Units Taxes payable otherwise than by deduction or withholding from payments on the Notes,
(v) any Taxes with respect to such Note presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the holder Holders of such Note would have been entitled to such amounts if it had presented Additional Amounts on presenting such units Note for payment on any day within date during such 30 day period), and
(vi) any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note.
(c) The obligations in Section 3.21(a) and Section 3.21(b) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The “Relevant Date” meansIssuer or such Note Guarantor, as applicable, shall (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer, furnish such other documentation that provides reasonable evidence of such payment by the Issuer.
(d) In addition, clause (iii) of Section 3.21(b) does not require that any person, including any non-Mexican pension fund, retirement fund or financial institution, register with the Ministry of Finance and Public Credit to establish eligibility for an exemption from, or a reduction of, Mexican withholding tax.
(e) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Issuer shall be deemed also to refer to any paymentAdditional Amount that may be payable with respect to that amount under the obligations referred to in this subsection.
(f) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 3.21 are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, and without any further action, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to us. However, by making such assignment, the date on which Holder makes no representation or warranty that we shall be entitled to receive such payment first becomes due claim for a refund or credit and payable, but if the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;incurs no other obligation with respect thereto.
Appears in 1 contract
Sources: Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. i. The Partnership (a) All payments made by or on behalf of the Issuer or the Note Guarantors under or with respect to the Notes or the Note Guarantees shall make all payments on the Series 18 Preferred Units be made free and clear of of, and without withholding or deduction at source for, for or on account of, any present or future taxestax, feesduty, dutieslevy, assessments impost, assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or on behalf of the Netherlands or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which the Issuer or any Note Guarantor (or any successor Person) is, organized or otherwise resident for tax purposes or any jurisdiction from or through which payment is made (each a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of such Taxes is required by law or by the interpretation or administration thereof.
(b) If the Issuer or any Note Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction, unless or if a Holder actually pays such taxes, fees, duties, assessments Taxes where the Issuer or governmental charges are the Note Guarantor failed to withhold or deduct Taxes required to be withheld held or deducted by (i) deducted, from any payment made under or with respect to the laws (notes or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredNote Guarantees, the Partnership shallIssuer or the relevant Note Guarantor, subject as applicable, will be required to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every the net payment made to such holders, amount received by the Holders (including Additional Amounts) after such withholding or deduction (including any such withholding or deduction from Taxes on such Additional Amounts)) will not be less than the amount the Holders would have received if such Taxes had not been withheld or deducted; provided, shall be equal to however, that the amounts the Partnership would otherwise have been required foregoing obligation to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
adoes not apply to (1) any tax, fee, duty, assessment or governmental charge of whatever nature Taxes that would not have been so imposed but for the fact that such holder was existence of any present or former connection between the relevant Holder (or between a residentfiduciary, domiciliary settlor, beneficiary, member or national shareholder of, or engaged in business possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust or maintained a permanent establishment or was physically present in, corporation) and the Relevant Taxing Jurisdiction (other than the mere receipt of such payment or the ownership or holding of such Note); (2) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; or (3) any Taxes withheld, deducted or imposed on a payment to an individual and which are required to be made pursuant to European Council Directive 2003/48/EC or any political subdivision thereof or otherwise had some connection with other directive implementing the Relevant Taxing Jurisdiction other than by reason conclusions of the mere ownership ofECOFIN Council meeting of November 26 and 27, or receipt 2000 on the taxation of payment under, the Series 18 Preferred Units savings income or any Series 18 Preferred Units law implementing or complying with or introduced in order to conform to such directives; nor will the Issuer or any Note Guarantor pay Additional Amounts (a) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required for payment) more than within 30 days after the Relevant Date date on which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such amounts if it had presented such units for payment on any day within such 30 30-day period), or (b) with respect to any payment of principal of (or premium, if any, on) or interest on such Note to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual holder of such Note.
(c) If an Officer of the Issuer or any Note Guarantor becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or the Note Guarantees, the Issuer, the Company or the relevant Subsidiary Guarantor shall deliver to the Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Issuer, the Company or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The “Relevant Date” meansOfficers’ Certificate must also set forth any other information reasonably necessary to enable the Paying Agents to pay Additional Amounts to Holders on the relevant payment date. The Trustee shall be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary. Upon request, the Issuer, the Company or the relevant Subsidiary Guarantor shall also provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid.
(d) Whenever in this Indenture there is mentioned, in any context:
(1) the payment of principal;
(2) purchase prices in connection with a purchase of Notes;
(3) interest; or
(4) any other amount payable on or with respect to any of the Notes, such reference shall be deemed to include payment of Additional Amounts as described in this Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The Issuer and the Note Guarantors shall pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in any jurisdiction from the execution, delivery, enforcement or registration of the Notes, the Note Guarantees, this Indenture or any other document or instrument in relation thereof, or the receipt of any paymentpayments with respect to the Notes or the Note Guarantees, the date on which excluding such payment first becomes due and payabletaxes, but if the full amount charges or similar levies imposed by any jurisdiction outside of the moneys payable has not been received by jurisdiction of organization of the Issuer or any of the Note Guarantors, or the jurisdiction of organization of any successor of the Issuer or any Note Guarantor, or any jurisdiction in which a Paying Agent on is located, and the Issuer and the Note Guarantors shall agree to indemnify the Holders for any such taxes paid by such Holders.
(f) The obligations described in this Section shall survive any termination, defeasance or prior discharge of this Indenture and shall apply mutatis mutandis to such due date, it means the first date on any jurisdiction in which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given any successor Person to the Series 18 Holders;Issuer or any Note Guarantor is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership (a) All payments made on all Securities and, with respect to any series of Securities to which the provisions of Article Fifteen shall make all payments on apply, the Series 18 Preferred Units Guarantee by the Company, the Guarantor, or a paying agent, as the case may be, shall be made free and clear of and without withholding or deduction at source for, for or on account of, of any present or future taxesincome, feesstamp or other tax, dutiesduty, assessments levy, impost, assessment or other governmental charges charge of whatever a similar nature imposed (collectively, “Taxes”), unless the Company, the Guarantor, or a paying agent, as applicable, is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof. If the Company, the Guarantor or a paying agent, as applicable, is required to withhold or deduct any amount for or on account of Taxes from any payment made in respect of the Securities or, with respect to any series of Securities to which provisions of Article Fifteen shall apply, the Guarantee levied by or on behalf of any a Relevant Taxing Jurisdiction, unless such taxesthe Company or the Guarantor, feesas applicable, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, shall pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so such that every the net payment made to amount received by each Holder (including such holdersAdditional Amounts), after such withholding or deduction (including any such withholding or deduction from such Additional Amounts)deduction, shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any less than the amount such Holder would have received if the Taxes had not been withheld or deducted; provided that no Additional Amounts for or on account ofwill be payable with respect to Taxes:
a(1) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that existence of any present or former connection between such holder was Holder or beneficial owner of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (or between a residentfiduciary, domiciliary settlor, beneficiary, member or national shareholder of, or possessor of a power over, such Holder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership or corporation), and such Relevant Taxing Jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or treated as a resident thereof or domiciled thereof or a national thereof or being or having been present or engaged in trade or business therein or maintained having or having had a permanent establishment therein;
(2) that are estate, inheritance, gift, sales, value added, transfer, personal property, wealth or was physically present similar taxes, duties, assessments or other governmental charges;
(3) payable other than by withholding from payments of principal of and premium, if any, or interest, if any, on the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee;
(4) that would not have been imposed but for the failure of the applicable recipient of such payment (or the beneficial owner of the applicable Security) to comply with any certification, identification, information, documentation or other reporting requirement to the extent:
(i) such compliance is required by applicable law or administrative practice or an applicable treaty as a precondition to exemption from, or reduction in, the Relevant Taxing Jurisdiction rate of deduction or withholding of such Taxes; and
(ii) at least thirty (30) days before the first payment date with respect to which such Additional Amounts or Taxes shall be payable, the Company or the Guarantor, as the case may be, shall have notified such recipient in writing that such recipient shall be required to comply with such requirement;
(5) that would not have been imposed but for the presentation of a Security or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (where presentation is required) for payment on a date more than thirty (30) days after the date on which such payment became due and payable or the date on which payment thereof was duly provided for, whichever occurred later;
(6) that are imposed or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), as of the issue date of the Securities (or any amended or successor version of such sections), any regulations promulgated thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement with respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code (any such taxes, “FATCA Taxes”), and any amounts to be paid on Securities by or on behalf of the Company will be paid net of any FATCA Taxes imposed or required pursuant thereto;
(7) that would not have been imposed if presentation for payment of the relevant Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (where presentation is required) had been made to a paying agent other than the paying agent to which the presentation was made;
(8) in the case of U.S. dollar-denominated Securities issued by the Company, any taxes imposed by the United States or any political subdivision thereof or otherwise had some connection tax authority therein, including any U.S. withholding and backup withholding taxes; or
(9) any combination of the foregoing clauses (1) through (8); nor shall Additional Amounts be paid with respect to any payment of principal of or premium, if any, or interest, if any, on any Securities or, with respect to any series of Securities to which the Relevant Taxing Jurisdiction provisions of Article Fifteen shall apply, the Guarantee, to any such Holder or beneficial owner who is a fiduciary or a partnership or a beneficial owner who is other than by reason the sole beneficial owner of the mere ownership of, or receipt of such payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except to the extent that the holder a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such Additional Amounts had it been the Holder of the Security. For the avoidance of doubt, no additional amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, shall be payable in respect of any paymentTaxes imposed by any jurisdiction other than a Relevant Taxing Jurisdiction.
(b) If the Company, the Guarantor, or a paying agent, as the case may be, becomes aware that it shall be obligated to pay Additional Amounts pursuant to this Section 4.05 with respect to any payment under or with respect to the Securities of such series or the Guarantee, the Company, the Guarantor, or the applicable paying agent, as the case may be, shall deliver to the Trustee on a date that is at least thirty (30) days prior to the date of that payment (unless the obligation to pay such Additional Amounts arises after the 30th day prior to that payment date, in which case the Company, the Guarantor, or the applicable paying agent shall notify the Trustee promptly thereafter) an Officer’s Certificate of the Company or the Guarantor, as the case may be, stating the fact that such Additional Amounts shall be payable pursuant to this Section 4.05 and the amount estimated to be so payable. Such Officer’s Certificate must also set forth any other information reasonably necessary to enable the paying agents to pay such Additional Amounts to Holders on which the relevant payment date. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Company, the Guarantor, or the applicable paying agent, as the case may be, shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment first becomes due of Additional Amounts.
(c) Each of the Company, the Guarantor, or the applicable paying agent, as the case may be, shall make all withholdings and payable, but if deductions required by law of it and shall remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law with respect to payments in respect of the moneys payable has Securities or Guarantees, as the case may be. Upon request, the Company, the Guarantor, or the applicable paying agent, as the case may be, shall provide to the Trustee an official receipt or, if official receipts are not been received obtainable, other documentation reasonably satisfactory to the Trustee evidencing the payment of any Taxes so deducted or withheld. Upon request, copies of those receipts or other documentation, as the case may be, shall be made available by the Paying Agent Trustee to the Holders of such Securities.
(d) All references in this Indenture, other than in Articles Twelve or Thirteen, to the payment of the principal of or premium, if any, or interest, if any, on or prior the net proceeds received on the sale or exchange of, any Securities or as applicable, with respect to such due datethe Guarantee, it means shall be deemed to include Additional Amounts to the first date on extent that, in that context, Additional Amounts are, were or would be payable.
(e) The obligations of the Company and, with respect to any series of Securities to which the full amount provisions of Article Fifteen shall apply, the Guarantor, to pay Additional Amounts if and when due shall survive the termination of this Indenture and the payment of all other amounts in respect of the Securities and any transfer by a Holder or beneficial owner of its Securities of such moneys having been so received series and being available for payment shall apply mutatis mutandis to holders and notice to that effect shall have been duly given any jurisdiction in which any successor Person to the Series 18 Holders;Company, the Guarantor, or the applicable paying agent, as the case may be, is incorporated or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Guarantees and any department or political subdivision thereof or therein.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership 10.7.1 All payments in respect of the Securities shall make all payments on the Series 18 Preferred Units free and clear of and be made without withholding or deduction at source for, for or on account of, of any present or future taxes, feesduties, assessments or other governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or on behalf of Brazil (“Brazilian Taxes”) or any other jurisdiction or political subdivision thereof having power to tax in which the Company or any successor thereto is organized or incorporated or is a resident for tax purposes (“Foreign Taxes”), as applicable (each such jurisdiction, a “Relevant Taxing Jurisdiction”), unless the Company is compelled by law to deduct or withhold such taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) charges. In the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units or (ii) an official position regarding the application, administration, interpretation or enforcement event of any such laws, regulations or rulings (including a holding by a court of competent jurisdiction or by a taxing authority in any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requireddeduction, the Partnership shallCompany shall make such deduction or withholding, subject will make payment of the amount so withheld to the limitations appropriate governmental authority and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, will pay to the Series 18 Holders each Holder such additional amounts (the “Additional Amounts”) as distributions as may be necessary so in order that every net payment made to by the Company on the Securities after such holderswithholding or deduction for or on account of any Brazilian Taxes or Foreign Taxes will equal the respective amounts of principal, after premium, if any, and interest which would have been receivable in respect of such Securities had no such withholding or deduction (including for any Foreign Taxes payable in respect of Additional Amounts) been required, except that no such Additional Amounts shall be payable with respect to any payment on a Security:
(i) to, or to a third party on behalf of, a Holder who is liable for any such withholding taxes, duties, assessments or deduction from other governmental charges in respect of such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
Security by reason of (a) a connection between the Holder and a Relevant Taxing Jurisdiction other than the mere holding of such Security and the receipt of payments with respect to such Security or (b) failure by the Holder to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with a Relevant Taxing Jurisdiction, of such Holder, if such compliance is required or imposed by law as a precondition to exemption from all or a part of such tax, fee, duty, assessment or other governmental charge and the Company has given the Holders at least 30 days’ notice that Holders will be required to comply with such requirement;
(ii) in respect of whatever nature that would not have been imposed but for the fact that any such holder was taxes, duties, assessments or other governmental charges with respect to 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 by reason of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment Security surrendered (where presentation if surrender is required for paymentrequired) more than 30 days after the Relevant Date (date on which such payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the holder Holder of such Security would have been entitled to such amounts if it had presented Additional Amounts on surrender of such units Security for payment on any the last day within of such 30 30-day period). The “Relevant Date” means;
(iii) where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to any European Union Directive on the taxation of savings implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 or any law implementing or complying with, or introduced in order to conform to, such directive;
(iv) in respect of any paymentestate, inheritance, gift, sales, transfer, personal property or similar tax, assessment or governmental charge imposed with respect to a Security;
(v) in respect of any tax, assessment or other governmental charge payable otherwise than by deduction or withholding from payments of principal of or interest or premium, if any, on any series of Securities or by direct payment by the date on which such payment first becomes due and payable, but if Company in respect of claims made against the full amount Company; or
(vi) in respect of any combination of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;above.
Appears in 1 contract
Sources: Indenture (Embraer S.A.)
Payment of Additional Amounts. i. The Partnership Issuer will indemnify and hold harmless the Solicitation Agent against any documentary, stamp, registration or other tax, charge, levy or other amounts imposed by Brazil on or in connection with the Exchange Offer or the Exchange Offer Material. All payments to be made to the Solicitation Agent, the holders of the Eligible Existing Notes and soliciting dealers by the Issuer hereunder shall make all payments on the Series 18 Preferred Units free and clear of and be made without withholding or deduction at source for, for or on account of, of any present or future taxes, fees, duties, assessments duties or governmental charges of whatever nature whatsoever imposed or levied by or on behalf of Brazil or any Relevant Taxing Jurisdiction, political subdivisions thereof (or any taxing authorities therein) unless the Issuer is compelled by law to deduct or withhold such taxes, fees, duties, assessments duties or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction)charges. If a withholding or deduction at source is requiredIn that event, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, Issuer shall pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so in order that every the net payment made to such holders, amounts received after such withholding or deduction (including any such shall equal the amounts that would have been received if no withholding or deduction from had been made; provided however, no such Additional Amounts), additional amounts shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
apayable (i) in respect of any tax, fee, duty, assessment duty or governmental charge of whatever nature that would not have been imposed but for the fact that such holder was a resident, domiciliary existence of any present or national of, or engaged in business or maintained a permanent establishment or was physically present informer connection between the Solicitation Agent, the Relevant Taxing Jurisdiction relevant holder or any political subdivision thereof or otherwise had some connection with soliciting dealer, as the Relevant Taxing Jurisdiction case may be, and the relevant taxing jurisdiction, other than by reason of the mere ownership ofentering into or performing this Agreement, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment and (where presentation is required for paymentii) more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any paymenttax, duty or governmental charge that would not have been imposed but for the failure of the Solicitation Agent, the date on which relevant holder or the soliciting dealer, as the case may be, to comply with any reasonable certification, identification, documentation or information or other reporting requirement if such compliance is required by law, regulation, administrative practice or applicable treaty as a precondition to or exemption from or reduction in the rate of deduction or withholding of such taxes; and provided, further, that the Issuer shall deliver to the Solicitation Agent, within 10 days following the payment first becomes due and payableof such tax, but if the full amount duty or charge, evidence of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount payment of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;tax, duty or charge.
Appears in 1 contract
Sources: Solicitation Agency Agreement (Brazilian Communitary Antennae LTD)
Payment of Additional Amounts. i. (a) The Partnership Company and any Restricted Subsidiary which after the Issue Date provides a Subsidiary Guarantee shall make all payments on the Series 18 Preferred Units free and clear of and without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, pay to Holders of the Series 18 Holders Notes such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every net payment made to such holders, after such withholding or deduction of interest (including any such withholding premium paid upon redemption of the Notes and any discount deemed interest under Mexican law) or deduction from such Additional Amounts), shall be equal principal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership Holders shall not be required to pay less than the amount provided for in the Notes. The term, “net payment,” means the amount that the Company, any Additional Amounts Restricted Subsidiary that provides a Subsidiary Guarantee or a Paying Agent pays any Holder after deducting or withholding an amount for or on account of:
aof any present or future taxes, duties, assessments or other governmental charges (“Taxes”) any tax, fee, duty, assessment or governmental charge of whatever nature imposed with respect to that would not have been imposed but for the fact that such holder 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 payment by Mexico or any political subdivision or taxing authority of any nature thereof or otherwise had some therein (“Taxing Authority”).
(b) The Company and any Restricted Subsidiary which after the Issue Date provides a Subsidiary Guarantee, shall not pay Additional Amounts to any Holder for or solely on account of any of the following:
(i) any Taxes imposed solely because at any time there is or was a connection between the Holder and Mexico (other than the mere receipt of a payment or the ownership or holding of a Note);
(ii) any estate, inheritance, gift or similar tax, assessment or other governmental charge imposed with respect to the Notes;
(iii) any Taxes imposed solely because the Holder or any other Person fails to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with Mexico, for tax purposes, of the Relevant Taxing Jurisdiction Holder or any beneficial owner of the Note if compliance is required by law, regulation thereunder or by an applicable income tax treaty to which Mexico is a party, as a precondition to exemption from, or reduction in the rate of, the tax, assessment or other governmental charge and the Company has given the Holders at least 30 days’ notice that Holders shall be required to provide such information and identification;
(iv) any Taxes payable otherwise than by reason of deduction or withholding from payments on the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or Notes;
(v) any Series 18 Preferred Units Taxes with respect to a Note presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the holder Holder of such Note would have been entitled to such amounts if it had presented Additional Amounts on presenting such units Note for payment on any day within date during such 30 30-day period;
(vi) any withholding or deduction imposed on a payment to or for the benefit of an individual that is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive on the taxation of savings implementing the conclusion of the ECOFIN council meeting on November 26-27, 2000, or any law implementing or complying with, or introduced in order to conform to, such Directive;
(vii) any withholding or deduction that is imposed on a Note presented for payment by or on behalf of a beneficial owner who would have been able to avoid the withholding or deduction by presenting the Note to another paying agent in a Member State of the European Union; and
(viii) any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note.
(c) The limitations on the obligations of the Company and any Restricted Subsidiary which after the Issue Date provides a Subsidiary Guarantee to pay Additional Amounts set forth in Section 3.19(b)(iii) shall not apply:
(i) if the provision of information, documentation or other evidence described in such Section 3.19(b)(iii) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note, than comparable information or other reporting requirements imposed under U.S. tax law (including the United States-Mexico income tax treaty), regulations and administrative practice; or
(ii) if the provisions of Article 195, Section II of the Mexican Income Tax Law (Ley de Impuestos Sobre la Rentd) (or a substitute or equivalent provision) is in effect, unless (A) the provision of the information, documentation or other evidence described in such Section 3.19(b)(iii) is expressly required by the applicable Mexican laws and regulations in order to apply such Article 195, Section II (or substitute or equivalent provision), (B) the Company or any Restricted Subsidiary cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican laws and regulations on its own through reasonable diligence and (C) the Company or any Restricted Subsidiary otherwise would meet the requirements for application of the applicable Mexican laws and regulations. The “Relevant Date” meansIn addition, such Section 3.19(b)(iii) does not require, and shall not be construed to require, that any Person, including any non-Mexican pension fund, retirement fund or financial institution, register with the Mexican Ministry of Finance and Public Credit to establish eligibility for an exemption from, or a reduction of, Mexican withholding tax.
(d) Promptly upon request, the Company or any Restricted Subsidiary which after the Issue Date provides a Subsidiary Guarantee shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Mexican taxes in respect of which the Company or such Restricted Subsidiary has paid any payment, Additional Amount. The Company shall make copies of such documentation available to the date on which such payment first becomes due and payable, but if the full amount Holders of the moneys payable has not been received by Notes or the Paying Agent on upon request.
(e) In the event of any merger or prior other transaction described and permitted under Section 4.1, then all references to such due dateMexico, it means Mexican law or regulations, and Mexican political subdivisions or taxing authorities under this Section 3.19 and under Article V and Section 5 of Exhibit A shall be deemed to also include the first date on which United States and any political subdivision therein or thereof, U.S. law or regulations, and any taxing authority of the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;United States or any political subdivision therein or thereof, respectively.
Appears in 1 contract
Sources: Indenture (Alestra)
Payment of Additional Amounts. i. The Partnership (a) All payments by Grupo Aval Limited or Grupo Aval in respect of the Notes or the Guarantees shall make all payments on the Series 18 Preferred Units be made free and clear of and without any withholding or deduction at source for, for or on account of, of any present or future Taxes, unless the withholding or deduction of such Taxes is required by law or the official interpretation thereof, or by the administration thereof. If Grupo Aval Limited or Grupo Aval shall be required by any law of any Taxing Jurisdiction to withhold or deduct any Taxes from or in respect of any sum payable under the Notes or the Guarantees, Grupo Aval Limited or Grupo Aval, as the case may be, shall (a) pay such additional amounts (“Additional Amounts”) as may be necessary in order that the net amounts receivable by Holders of any Notes after such withholding or deduction equals the respective amounts which would have been receivable by such Holders in the absence of such withholding or deduction, (b) make such withholding or deduction, and (c) pay the full amount withheld or deducted to the relevant tax or other authority in accordance with applicable law, except that no such Additional Amounts shall be payable in respect of any Note:
(i) to the extent that such Taxes are imposed or levied by reason of such Holder (or the beneficial owner) having some connection with the Taxing Jurisdiction other than the mere holding (or beneficial ownership) of such Note or receiving principal or interest payments on the Note (including but not limited to citizenship, nationality, residence, domicile, or existence of a business, permanent establishment, a dependant agent, a place of business or a place of management present or deemed present in the Taxing Jurisdiction);
(ii) to the extent that any Tax is imposed other than by deduction or withholding from payments of principal of or premium, if any, or interest on the Notes;
(iii) in the event that the Holder (or beneficial owner) fails to comply with any certification, identification or other reporting requirement concerning nationality, residence, identity or connection with the Taxing Jurisdiction if (1) compliance is required by applicable law, regulation, administrative practice or treaty as a precondition to exemption from all or part of the Taxes, and (2) Grupo Aval Limited or Grupo Aval, as the case may be, has given the Holders (or beneficial owners) at least 30 days prior notice that they shall be required to comply with such requirement;
(iv) in the event that the Holder fails to surrender (where surrender is required) its Note for payment within 30 days after Grupo Aval Limited or Grupo Aval, as the case may be, has made available a payment of principal or interest, provided that Grupo Aval Limited or Grupo Aval, as the case may be, shall pay Additional Amounts to which a Holder would have been entitled had the Note been surrendered on the last day of such 30-day period;
(v) to the extent that such Taxes are imposed by reason of an estate, inheritance, gift, personal property, value added, use or sales tax or any similar taxes, fees, duties, assessments or other governmental charges charges;
(vi) where such withholding or deduction of whatever nature Taxes is imposed on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC or levied any other Directive on the taxation of savings implementing the conclusions of the European Council of Economic and Finance Ministers (ECOFIN) meeting of 26 and 27 November 2000 or any law implementing or complying with, or introduced in order to conform to, such Directive;
(vii) by or on behalf of a Holder who would have been able to avoid such withholding or deduction of Taxes by presenting the relevant Note to another Paying Agent in a member state of the European Union; or
(viii) any Relevant combination of items (i) through (vii) above.
(b) No Additional Amounts shall be paid to a Holder that is a fiduciary or a partnership or not the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or such beneficial owner would not have been entitled to receive the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder.
(c) Grupo Aval Limited or Grupo Aval, as the case may be, shall provide the Trustee with the official acknowledgment of the relevant Taxing JurisdictionJurisdiction (or, unless if such acknowledgment is not available, other reasonable documentation) evidencing any payment of any Taxes in respect of which Grupo Aval Limited or Grupo Aval, as the case may be, has paid any Additional Amounts. Copies of such documentation shall be made available to the Holders of the Notes or the Paying Agents, as applicable, upon request therefor.
(d) Grupo Aval Limited or Grupo Aval, as the case may be, shall also pay any present or future stamp, issue, registration, court or documentary taxes or any excise or property taxes, charges or similar levies (including any penalties, interest and other liabilities relating thereto) which arise in any jurisdiction from the execution, delivery, registration or the making of payments in respect of the Notes and the related Guarantees, excluding any such taxes, feescharges or similar levies imposed by any jurisdiction that is not a Taxing Jurisdiction other than those resulting from, dutiesor required to be paid in connection with, assessments the enforcement of the Notes and the related Guarantees following the occurrence of any Default or governmental charges are Event of Default.
(e) All references in this Indenture to principal of and premium, if any, and interest on the Notes shall include any Additional Amounts payable by Grupo Aval Limited or Grupo Aval, as the case may be, in respect of such principal, premium, if any, and interest.
(f) At least ten Business Days prior to the first Interest Payment Date (and at least ten Business Days prior to each succeeding Interest Payment Date but only if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate), Grupo Aval Limited shall furnish to the Trustee and the Paying Agents an Officers’ Certificate instructing the Trustee and the Paying Agents whether payments of principal of or interest on the Notes due on such Interest Payment Date shall be without deduction or withholding for or on account of any Taxes. If any such deduction or withholding shall be required, prior to such Interest Payment Date, Grupo Aval Limited shall furnish the Trustee and the Paying Agents with an Officers’ Certificate which specifies the amount, if any, required to be withheld or deducted by (i) on such payment to Holders of the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations Notes and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, certifies that Grupo Aval Limited shall pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every net payment made to such holders, after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal amount to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been requiredappropriate Taxing Jurisdiction.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
a) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder 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 by reason of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;
Appears in 1 contract
Payment of Additional Amounts. i. (a) The Partnership Company is required by Mexican law to deduct and to withhold certain Taxes from payments of interest and amounts deemed interest to investors who are not residents of Mexico for tax purposes, and shall make all pay to any Holder such additional amounts (“Additional Amounts”) on those payments on to the Series 18 Preferred Units free and clear of and without withholding extent described in this Section 3.21. To the extent Taxes imposed by Mexico or deduction at source for, any political subdivision or on account of, any present taxing authority thereof or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges therein (“Mexican Taxes”) are required to be withheld or deducted by (i) from any payments under the laws (Notes or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredNote Guarantees, the Partnership shall, subject to Company or the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders such additional amounts relevant Restricted Subsidiaries (the “Payor,” as applicable) shall pay such Additional Amounts”) as distributions Amounts as may be necessary so to ensure that every the net payment made to amount actually received by such holders, Holder after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be of Mexican Taxes is equal to the amounts amount that the Partnership Holder would otherwise have been required to pay received had no such withholding or deduction been required.
ii. (b) The Partnership Payor shall not be required to pay any Additional Amounts to any Holder for or on account ofof any of the following:
a(i) any Taxes imposed solely because of the existence of any present or former connection between such Holder and Mexico (other than the mere receipt of a payment or the ownership or holding of a Note) or enforcement of rights in respect of the Notes;
(ii) any estate, inheritance, gift, sales, transfer or similar tax, fee, duty, assessment or other governmental charge of whatever nature that would not have been imposed but for with respect to the fact that Notes;
(iii) any Taxes imposed solely because the Holder or any other Person fails to comply with any certification, identification, information, documentation or other similar reporting requirement if (A) such holder was compliance is required by law, regulation, or administrative practice, or an applicable treaty in effect as a residentprecondition to exemption from, domiciliary or national reduction in the rate of, deduction or engaged in business withholding of any Taxes for which the Payor is required to pay Additional Amounts, (B) the Holder or maintained a permanent establishment such other Person is legally entitled to comply with such reporting requirement and (C) at least 30 days prior to the first Interest Payment Date or was physically present inChange of Control Payment Date with respect to which the Payor shall apply this Section 3.21(b)(iii), the Relevant Taxing Jurisdiction Company or the Restricted Subsidiaries shall have notified the Holder that the Holder shall be required to comply with such requirement;
(iv) any political subdivision thereof or Taxes that are payable otherwise had some connection with the Relevant Taxing Jurisdiction other than by reason of deduction or withholding from payments on the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or Notes;
(v) any Series 18 Preferred Units Taxes with respect to such Note presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the holder Holders of such Note would have been entitled to such amounts if it had presented Additional Amounts on presenting such units Note for payment on any day within date during such 30 30-day period; and
(vi) any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder.
(c) Upon request, the Payor shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of any Taxes deducted or withheld (including certified copies of any of returns submitted). The “Relevant Date” means, in respect Payor shall make copies of any payment, such documentation available to the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by Holders or the Paying Agent on upon request.
(d) Notwithstanding the foregoing, the exceptions to a Payor’s obligation to pay Additional Amounts set forth in Section 3.21(b)(iii) shall not apply if (i) the provision of information, certification, documentation or prior other evidence described in Section 3.21(b)(iii) would be substantially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note (taking into account any relevant differences between U.S. law, rules, regulations or administrative practice and those of the relevant taxing jurisdiction (Mexico, or any political subdivision or taxing authority thereof or therein)) than comparable information or other reporting requirements imposed under U.S. tax law, regulation and administrative practice (such due dateas IRS Forms W-8BEN and W-9) or (ii) with respect to Taxes imposed by Mexico or any political sub-division or taxing authority thereof, it means (A) Article 195, Section II, of the first date on which the full amount Mexican income tax law (or a substantially similar successor of such moneys having been so received provision) is in effect, unless the provision of the information, certification, documentation or other similar evidence described in Section 3.21(b)(iii) is expressly required by statute, rule or regulation, or an order of a competent authority based upon any such law or regulation, in order to apply Article 195, Section II, of the Mexican income tax law (or a substantially similar successor of such provision), (B) the Payor cannot obtain such information, certification, documentation or other similar evidence on its own through reasonable diligence and being available (C) the Payor otherwise would meet the requirements for payment application of Article 195, Section II, of the Mexican income tax law (or such successor of such provision). In addition, Section 3.21(b)(iii) shall not be construed to holders require that a non-Mexican pension or retirement fund or a non-Mexican financial institution or any other Holder register with the Ministry of Finance and notice Public Credit for the purpose of establishing eligibility for an exemption from or reduction of Mexican withholding tax or to require that effect a Holder or beneficial owner of a Note certify or provide information concerning whether it is or is not a tax-exempt pension or retirement fund.
(e) In the event that Additional Amounts actually paid with respect to the Notes pursuant to the preceding paragraphs are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and, as a result thereof, such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to the Payor. However, by making such assignment, the Holder makes no representation or warranty that the Payor shall be entitled to receive such claim for a refund or credit and Incurs no other obligation with respect thereto (including Incurring any expenses whatsoever necessary to obtain such refund or taking any other action).
(f) In the event a Payor conducts business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than Mexico or any political subdivision thereof and, as a result, is required by the law of such Additional Taxing Jurisdiction to deduct or withhold any amount on account of taxes imposed by such Additional Taxing Jurisdiction from payments under the Notes or the relevant Note Guarantee, as the case may be, which would not have been duly given required to be so deducted or withheld but for such conduct of business in such Additional Taxing Jurisdiction, then all references to Mexico, Mexican law or regulations, and Mexican taxing authorities under this Section 3.21 and Section 5.8 shall be deemed to also include such Additional Taxing Jurisdiction and any political subdivision thereof, the laws or regulations of such Additional Taxing Jurisdiction and any taxing authority of such Additional Taxing Jurisdiction, respectively.
(g) The Company (or, failing which, the relevant Restricted Subsidiaries) shall pay any present or future stamp, court or documentary taxes, or any other excise or property taxes, charges or similar levies which arise in any jurisdiction from the execution, delivery or registration of the Notes, the Note Guarantees or any other document or instrument referred to therein (other than a transfer of the Notes), or the receipt of any payments with respect to the Series 18 Holders;Notes or the Note Guarantees, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than Mexico or any political subdivision thereof, other than those resulting from, or required to be paid in connection with, the enforcement of the Notes, the Note Guarantees or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes.
(h) The foregoing paragraphs in this Section 3.21 shall survive any termination, defeasance or discharge of the Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to a Payor is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Iusacell S a De C V)
Payment of Additional Amounts. i. The Partnership shall make all payments on the Series 18 Preferred Units free and clear of and without withholding or deduction at source for, or on account of, If any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or other governmental charges are required imposed by the jurisdiction, other than the United States, where the Guarantor or a successor (a "Payor") is organized or otherwise considered to be withheld a resident for tax purposes, any jurisdiction, other than the United States, from or deducted by through which the Payor makes a payment on the Debentures, or, in each case, any political organization or governmental authority thereof or therein having the power to tax (ithe "Relevant Tax Jurisdiction") the laws (or any regulations or rulings promulgated thereunder) in respect of any Relevant Taxing Jurisdiction for payments under the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredDebentures, the Partnership shallPayor shall pay to each holder of a Debenture, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Aextent it may lawfully do so, pay to the Series 18 Holders such additional amounts (the “"Additional Amounts”") as distributions as may be necessary so in order that every the net payment made amounts paid to such holdersholder will be not less than the amount specified in such Debenture to which such holder is entitled; provided, after such withholding or deduction (including any such withholding or deduction from such Additional Amounts)however, shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership Payor shall not be required to pay make any payment of Additional Amounts for or on account of:
(a) any tax, fee, duty, assessment or other governmental charge of whatever nature that which would not have been imposed but for (i) the fact that existence of any present or former connection between such holder was (or between a residentfiduciary, domiciliary settlor, beneficiary, member or national shareholder of, or possessor of a power over, such holder, if such holder is an estate, trust, partnership, limited liability company or corporation) and the Relevant Tax Jurisdiction including, without limitation, such holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or maintained having or having had a permanent establishment therein or was physically present in, (ii) the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise had some connection with the Relevant Taxing Jurisdiction other than by reason presentation of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment a Debenture (where presentation is required required) for payment) payment on a date more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, x) the date on which such payment first becomes became due and payable, but if payable or (y) the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which payment thereof is duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer, personal property or similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of (or in respect of) principal of, premium, if any, or any interest on, the full amount Debentures;
(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 the Debenture to comply with a request of the Payor addressed to the holder to provide information, documents or other evidence concerning the nationality, residence or identity of the holder or such beneficial owner which is required by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such moneys having been so received and being available for tax, assessment or other governmental charge; or
(e) any combination of the above; nor will Additional Amounts be paid with respect to any payment of the principal of, or any premium or interest on, any Debenture to any holder who is a fiduciary or partnership or limited liability company or other than the sole beneficial owner of such payment to holders and notice the extent such payment would be required by the laws of the Relevant Tax Jurisdiction to that effect shall be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership, limited liability company or beneficial owner who would not have been duly given entitled to such Additional Amounts had it been the holder of such Debenture. The Payor shall provide the Trustee with the official acknowledgment of the relevant tax authority (or, if such acknowledgment is not available, a certified copy thereof) evidencing the payment of the withholding taxes by the Payor. Copies of such documentation shall be made available to the Series 18 Holders;holders of the Debentures or the paying agent, as applicable, upon request therefor.
SECTION 7. The Indenture is hereby amended, solely with respect to the 5.25% Senior Notes Due 2007 and any Subsequent Debentures, by adding at the end of Section 7.01(f) thereof the word "or" and by adding to Section 7.01 the following subsections:
Appears in 1 contract
Sources: Second Supplemental Indenture (Cooper Industries LTD)
Payment of Additional Amounts. i. The Partnership All payments made by the Issuer under or with respect to the Notes shall make all payments on the Series 18 Preferred Units be made free and clear of and without withholding or deduction at source for, for or on account of, of any present or future taxes, fees, duties, assessments or governmental charges of whatever nature Taxes imposed or levied by or on behalf of any Taxing Authority in any jurisdiction in which the Issuer is organized or is otherwise resident for tax purposes or any jurisdiction from or through which payment is made (each a “Relevant Taxing Jurisdiction”), unless the Issuer is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If the Issuer is required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction, unless from any payment made under or with respect to the Notes, the Issuer shall make such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, shall pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every the net payment made to such holders, amount received by each Holder of Notes (including Additional Amounts) after such withholding or deduction (including any shall equal the amount the Holder would have received if such withholding Taxes had not been withheld or deduction from such deducted; provided, however, that no Additional Amounts), Amounts shall be equal payable with respect to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
a) any tax, fee, duty, assessment or governmental charge of whatever nature Tax that would not have been imposed imposed, payable or due:
(1) with respect to a Holder with which the Issuer or any Guarantor does not deal on an arm’s length basis within the meaning of the Income Tax Act (Canada) on the date of such payment;
(2) but for the fact that such holder was existence of any present or former connection between the Holder and the Relevant Taxing Jurisdiction (including being a resident, domiciliary citizen or resident or national of, or engaged in carrying on a business or maintained maintaining a permanent establishment in, or was being physically present in, the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise had some connection with the Relevant Taxing Jurisdiction Jurisdiction) other than by reason the mere holding of the mere ownership of, Notes or enforcement of rights thereunder or the receipt of payment underpayments in respect thereof;
(3) but for the failure to satisfy any certification, identification or other reporting requirements whether imposed by statute, treaty, regulation or administrative practice; or
(4) if the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment presentation of Notes (where presentation is required required) for payment) more than payment has not occurred within 30 days after the Relevant Date (except date such payment was due and payable or was duly provided for, whichever is later. In addition, Additional Amounts shall not be payable if the beneficial owner of,.or person ultimately entitled to obtain an interest in, such Notes had been the Holder of the Notes and such beneficial owner would not be entitled to the extent payment of Additional Amounts by reason of clause (1), (2), (3) or (4) above. In addition, Additional Amounts shall not be payable with respect to any Tax which is payable or assessed on a Holder under the laws of the jurisdiction(s) in which: (1) that the holder would have been entitled to such amounts if it had presented such units Holder is incorporated, organized, resident or has a permanent establishment for payment on any day within such 30 day period). The “Relevant Date” meanstax purposes, or (2) that Holder’s office is located in respect of any paymentamounts received or receivable in that jurisdiction, if that Tax is imposed on or calculated by reference to the income received or receivable by that Holder. Upon request, the date on which such payment first becomes due and payable, but if Issuer shall provide the full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given Trustee with documentation satisfactory to the Series 18 Holders;Trustee evidencing the payment of Additional Amounts.
Appears in 1 contract
Sources: Indenture (Ipsco Inc)
Payment of Additional Amounts. i. The Partnership shall make all (a) All payments made by or on behalf of the Series 18 Preferred Units free and clear of and Company or any Guarantor under or with respect to the Securities or any Guarantee, as applicable, will be made without withholding or deduction at source for, or on account of, any present or future taxestax, feesduty, dutieslevy, assessments impost, assessment or other similar governmental charges of whatever nature imposed charge (collectively, “Taxes”) unless such withholding or deduction is required by law. In the event that any such withholding or deduction for, or on account of, any Taxes is levied by or on behalf of:
(i) Bermuda or any other jurisdiction in which the Company or any Guarantor is incorporated or organized, has its place of central management or central control or is otherwise engaged in business or resident for tax purposes or any political subdivision or taxing authority thereof; or
(ii) any jurisdiction from or through which payment is made by or on behalf of the Company or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision or taxing authority thereof (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction”). If a withholding or deduction at source is required, the Partnership shallCompany or the relevant Guarantor, subject to as the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Acase may be, will pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every the net amount received by each Holder of Securities will equal the amount that the Holder would have received if the Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment made to a Holder to the extent:
(1) that any Taxes would not have been so imposed but for the existence of any present or former connection between the Holder and the Relevant Taxing Jurisdiction, other than the mere receipt of the payment, acquisition, ownership or disposition of such holdersSecurities or the exercise or enforcement of rights under the Securities, after such the Guarantees or this Indenture;
(2) of any estate, inheritance, gift, sales, transfer or personal property Taxes imposed with respect to the Securities or any other Taxes payable other than by withholding or deduction deduction, except as described below or as otherwise provided in this Indenture;
(including 3) that any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
a) any tax, fee, duty, assessment or governmental charge of whatever nature that Taxes would not have been imposed but for the fact that such holder 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 by reason presentation of the mere ownership ofSecurities, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment (where presentation is required required, for payment) payment on a date more than 30 days after the Relevant Date (date on which the payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the holder beneficiary or Holder thereof would have been entitled to such amounts if it Additional Amounts had the Securities been presented such units for payment on any day within date during such 30 30-day period;
(4) that the Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar claim for exemption, if: (a) the making of the declaration or claim is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant taxing authority as a precondition to an exemption from, or reduction in, the relevant Taxes; (b) at least 60 days prior to the first payment with respect to which the Company or such Guarantor shall apply this clause (iv). The “Relevant Date” means, the Company or such Guarantor shall have notified all holders of the Securities in writing that they shall be required to provide this declaration or claim; and (c) the Holder is legally eligible to provide such declaration or claim;
(5) any Taxes imposed under Sections 1471 through 1474 of the Code, any successor law or regulation implementing or complying with, or introduced in order to conform to, such Sections, any agreement entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any such intergovernmental agreement;
(6) any Taxes imposed on overall net income or any branch profits Taxes;
(7) that a beneficiary or settlor with respect to a fiduciary, a member of a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of a Security in the case of a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment;
(8) or any combination of the Taxes and/or withholdings or deductions described in the foregoing clauses (1) through (7).
(b) The Company and such Guarantor shall also (i) withhold or deduct such Taxes as required; (ii) remit the full amount of Taxes deducted or withheld to the relevant taxing authority in accordance with all applicable laws; (iii) use reasonable efforts to obtain from each relevant taxing authority imposing the Taxes certified copies of tax receipts evidencing the payment of any Taxes deducted or withheld; and (iv) upon request, make available to the Holders of the Securities, within 60 days after the date the payment of any Taxes deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company or such Guarantor and, notwithstanding the Company’s or such Guarantor’s efforts to obtain the receipts, if the same are not obtainable, other evidence of such payments. Each Holder and beneficial owner of the Securities agrees that it shall, upon the request of an applicable withholding agent, provide an applicable IRS Form W-8 or W-9 to the applicable withholding agent.
(c) In addition, the Company or any Guarantor will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and additional amounts with respect thereto, payable in any Relevant Taxing Jurisdiction with respect to the creation, issue, offering, enforcement, redemption or retirement of the Securities or Guarantees.
(d) At least 30 days prior to each date on which such any payment first becomes under or with respect to the Securities is due and payable, but if the full amount Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment, the Company (or in respect of the moneys Guarantees, such Guarantor) shall deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, and the amounts so payable has not been received by and will set forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the Holders on the payment date.
(e) All references in this Indenture to the payment of principal of and premium, if any, Additional Amounts, if any, or interest (including defaulted interest), if any, or any other amount payable on or prior with respect to such due date, it means any of the first date on which Securities shall be deemed to include mention of the full amount payment of such moneys having been so received and being available Additional Amounts provided for payment to holders and notice to that effect shall have been duly given in this Section 3.08 to the Series 18 Holders;extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section 3.08, and express mention of the payment of Additional Amounts in those provisions in this Indenture shall not be construed as excluding Additional Amounts where such express mention is not made (if applicable).
(f) The obligations of the Company and any Guarantor under this Section 3.08 shall survive the termination of this Indenture and the payment of all amounts under or with respect to this Indenture and the Securities.
Appears in 1 contract
Sources: Indenture (Nabors Industries LTD)
Payment of Additional Amounts. i. (a) The Partnership shall Company or, if applicable, each Guarantor (pursuant to the terms of the applicable Guarantee) (each, a “Payor”) will make all payments of, or in respect of, principal, premium (if any) and interest on the Series 18 Preferred Units Notes, or any payment pursuant to the Guarantees, as the case may be, free and clear of and without withholding or deduction at source for, for or on account of, of any present or future taxestax, feesduty, dutieslevy, assessments impost, assessment or other governmental charges of whatever nature imposed charge (including penalties, interest, and other liabilities related thereto) whatsoever imposed, assessed, levied or levied collected (“Taxes”) by or on behalf for the account of Bermuda, the United Kingdom or any other jurisdiction in which the Company or any Guarantor is organized, or resident for tax purposes, engaged in business for tax purposes or through which payment is made (or any political subdivision thereof or any authority thereof having the power to tax) (a “Relevant Taxing Jurisdiction”), unless such taxes, fees, duties, assessments withholding or governmental charges are deduction is required to be withheld by law or deducted by the official interpretation or administration thereof.
(ib) the laws (or any regulations or rulings promulgated thereunder) of any If a Payor is required by a Relevant Taxing Jurisdiction for to deduct or withhold Taxes from any payment of principal, premium (if any) and interest on the Series 18 Preferred Units Notes, 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject payments pursuant to the limitations and exceptions set forth in this Section 2(C)(eGuarantees, as the case may be, such Payor will pay (together with such payments) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every the net payment made to amount received in respect of such holderspayments by the holder of such Note, after such deduction or withholding or deduction (including any such deduction or withholding or deduction from in respect of such Additional Amounts)) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership however, that a Payor shall not be required to pay any Additional Amounts Amount for or on account of:
a(1) any tax, fee, duty, assessment or governmental charge of whatever nature Taxes that would not have been imposed so imposed, assessed, levied or collected but for the fact that such the holder was or beneficial owner of the applicable Note or Guarantee (or a residentfiduciary, domiciliary settlor, beneficiary, member or national shareholder of, or possessor of a power over, such holder, if such holder is an estate, trust, partnership or corporation) is or has been a domiciliary, national or resident of, or engaging or having been engaged in a trade or business or maintaining or having maintained a permanent establishment or was being or having been physically present in, the a Relevant Taxing Jurisdiction or any political subdivision thereof otherwise having or otherwise having had some connection with the a Relevant Taxing Jurisdiction other than by reason of the mere holding or ownership of, or receipt the collection of payment underprincipal of, and premium (if any) or interest on, a Note or the Series 18 Preferred Units enforcement of the applicable Guarantee, as the case may be;
(2) any Taxes that would not have been so imposed, assessed, levied or any Series 18 Preferred Units presented collected but for payment (the fact that, where presentation is required for in order to receive payment) , the applicable Note or Guarantee was presented more than 30 days after the Relevant Date (date on which such payment became due and payable or was provided for, whichever is later except to the extent that the holder or beneficial owner thereof would have been entitled to Additional Amounts had the applicable Note or Guarantee been presented for payment on any day during such 30 day period;
(3) any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(4) any Taxes that are payable otherwise than by deduction or withholding from payments on or in respect of the applicable Note or Guarantee;
(5) any Taxes that would not have been so imposed, assessed, levied or collected but for the failure by the holder or the beneficial owner of the applicable Note or Guarantee to comply with a written request addressed to the holders (A) to provide any certification, identification, information, documents or other evidence concerning the nationality, residence or identity of the holder or the beneficial owner or its connection with the Relevant Taxing Jurisdiction or (B) to make any valid or timely declaration or claim or satisfy any other reporting, information or procedural requirements relating to such matters if, in either case, compliance is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction as a condition to relief or exemption from such Taxes;
(6) any withholding or deduction that is imposed on the applicable Note or Guarantee that is presented for payment, where presentation is required, by or on behalf of a holder who would have been able to avoid such withholding or deduction by presenting the relevant Note or Guarantee to another paying agent in a member state of the European Union;
(7) any deduction or withholding arising on or in connection with FATCA; and
(8) any combination of the Taxes described in (1) through (7) above.
(c) In addition, Additional Amounts will not be paid with respect to any payment of the principal of, or any interest on, any of the applicable Notes or Guarantees to any holder of the applicable Notes or Guarantees that is a fiduciary, a partnership, a limited liability company or any person other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of a Relevant Taxing Jurisdiction to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary, a member of such partnership, an interest holder in such limited liability company or a beneficial owner that would not have been entitled to such amounts if it had presented such units for payment on beneficiary, settlor, member, interest holder or beneficial owner been the holder of the relevant Notes or Guarantees.
(d) The Payor will (i) make any day within such 30 day period)required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The “Payor will use reasonable efforts to obtain certified copies of tax receipts or such other reasonable evidence of the payment of any Taxes so deducted or withheld from each Relevant Date” meansTaxing Jurisdiction imposing such Taxes. The Payor will furnish to the Trustee (or to a holder upon written request), within a reasonable time after the date of the payment of any Taxes so deducted or withheld is made, such certified copies or proof of payment. The Payor will attach a certificate stating (x) that the amount of withholding Taxes evidenced by the certified copy or other proof of payment was paid in connection with payments in respect of any paymentthe principal amount of Notes then outstanding and (y) the amount of such withholding Taxes paid per $1,000 principal amount of the Notes. Copies of such documentation will be available for inspecting during ordinary business hours at the office of the Trustee by the holders of the Notes upon written request and will be made available at the offices of the Paying Agent.
(e) As soon as reasonably practicable, prior to each Record Date preceding the related Interest Payment Date and each date on which such any other payment first becomes under or with respect to the Notes or the Guarantee thereof is due and payable, but if the full amount of Payor will be obligated to pay Additional Amounts with respect to such payment, the moneys Payor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable has not been received by and will furnish such other information necessary to enable the Paying Agent to pay such Additional Amounts to holders on the payment date. Each such Officer’s Certificate shall be relied upon until receipt of a further Officer’s Certificate addressing such matters. Neither the Trustee nor the Paying Agent shall have any responsibility or liability for the determination, verification or calculation of any Additional Amounts. Such Officer’s Certificate may be forwarded by the Trustee to the registered holder and also upon written request to any holder.
(f) Unless otherwise stated, references in any context to the payment of principal of, and any premium or interest on, any Note, other payment on or prior with respect to the Notes or any payment pursuant to the Guarantees, will be deemed to include payment of Additional Amounts to the extent that, in such due datecontext, it means Additional Amounts are, were or would be payable in respect thereof.
(g) The Payor will pay any present or future stamp, court or documentary taxes, or any other excise or property taxes, charges or similar levies which arise in any jurisdiction from the first date on which execution, delivery, registration or enforcement following the full amount occurrence of any event of default of any Notes or any other document or instrument referred to therein. For the avoidance of doubt, no Payor shall be responsible for the payment or other discharge of such moneys taxes, charges, or levies that arise as a result of, or in connection with, any transfer, assignment or the disposition of the Notes (or any rights attaching thereto) by any holder.
(h) The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a Payor is organized or any political subdivision thereof or any authority thereof or therein having been so received and being available for payment the power to holders and notice to that effect shall have been duly given to the Series 18 Holders;tax.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership shall make all (a) All payments on by the Series 18 Preferred Units Issuer (or any Paying Agent) in respect of the Notes or the Guarantors (or any Paying Agent) in respect of the Note Guarantees will be made free and clear of of, and without withholding or deduction at source for, for or on account of, any present or future taxes, fees, duties, assessments assessments, or other governmental charges of whatever a similar nature imposed or levied by or on behalf of Brazil or Luxembourg, or any Relevant political subdivision or authority therein or thereof or any other jurisdiction in which the Issuer or any Guarantor is organized, doing business or has a permanent establishment (any of the aforementioned being a “Taxing Jurisdiction”), unless the Issuer or the Guarantors (or any Paying Agent) are compelled by law to deduct or withhold such taxes, feesduties, assessments, or governmental charges. In such event, the Issuer or the Guarantors (or any Paying Agent), as applicable, will make such deduction or withholding, and make payment of the amount so withheld to the appropriate governmental authority and the Issuer or the Guarantors, as applicable, will pay such additional amounts as may be necessary to ensure that the net amounts receivable by Holders of Notes after such withholding or deduction shall equal the respective amounts of principal (and premium, if any) and interest which would have been receivable in respect of the Notes in the absence of such withholding or deduction (“Additional Amounts”). Notwithstanding the foregoing, no such Additional Amounts shall be payable:
(1) to, or to a third party on behalf of, a Holder who is liable for such taxes, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) in respect of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every net payment made to such holders, after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
a) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder 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 Note by reason of the mere ownership ofexistence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of such Holder, if such Holder is an estate, a trust, a partnership, or a corporation) and the relevant Taxing Jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof, being incorporated in, being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein, other than the mere holding of the Note or enforcement of rights under this Indenture and the receipt of payment under, payments with respect to the Series 18 Preferred Units Note;
(2) in respect of Notes surrendered or any Series 18 Preferred Units presented for payment (where presentation if surrender or presentment is required for paymentrequired) more than 30 days after the Relevant Date (except to the extent that payments under such Note would have been subject to withholdings and the holder Holder of such Note would have been entitled to such amounts if it Additional Amounts, had presented such units the Note been surrendered for payment on the last day of such period of 30 days;
(3) to, or to a third party on behalf of, a Holder who is liable for such taxes, duties, assessments or other governmental charges by reason of such Holder’s failure to comply with any day within certification, identification, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder, if (1) compliance is required by law as a precondition to, exemption from, or reduction in the rate of, the tax, assessment or other governmental charge and (2) the Issuer has given the Holders at least 30 day period). The “Relevant Date” meansdays’ notice that Holders will be required to comply with such certification, identification, documentation or other reporting requirement;
(4) in respect of any paymentestate, inheritance, gift, sales, transfer, excise or personal property or similar tax, assessment or governmental charge;
(5) in respect of any tax, assessment or other governmental charge which is payable other than by deduction or withholding from payments of principal, premium (if any) or interest on the Note;
(6) in respect of any tax imposed on overall net income or any branch profits tax;
(7) in respect of any tax imposed pursuant to sections 1471 to 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), any successor law or regulation implementing or complying with, or introduced in order to conform to, such sections or any intergovernmental agreement in respect thereof or any agreement entered into pursuant to section 1471(b)(1) of the Code;
(8) in respect of any tax imposed by Luxembourg by virtue of the Luxembourg law of 23 December 2005, as amended from time to time (the “Relibi Law”); or
(9) in respect of any combination of the above.
(b) No Additional Amounts shall be paid with respect to any payment on a Note to a Holder who is a fiduciary, a partnership, a limited liability company or other than the sole beneficial owner of that payment to the extent that payment would be required by the relevant Taxing Jurisdiction to be included in the income, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or limited liability company or a beneficial owner who would not have been entitled to the Additional Amounts had that beneficiary, settlor, member or beneficial owner been the Holder.
(c) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above, neither the Issuer nor the Guarantors shall be required to make a payment with respect to any tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein.
(d) In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and, as a result thereof such Holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess to the Issuer. However, by making such assignment, the date on Holder makes no representation or warranty that the Issuer will be entitled to receive such claim for refund or credit and incurs no other obligation (including, for the avoidance of doubt, any filing or other action) with respect thereto.
(e) The Issuer and the Guarantors shall provide the Trustee with documentation evidencing the payment of taxes in respect of which the Issuer or the Guarantors, as applicable, have paid any Additional Amounts. Copies of such payment first becomes due documentation shall be made available by the Trustee to the Holders or the Paying Agents, as applicable, upon written request therefor.
(f) The Issuer shall also pay any present or future stamp, issue, registration, court or documentary taxes or any excise or property taxes, charges or similar levies (including any penalties, interest and payableother liabilities relating thereto) which arise in any jurisdiction from the execution, but if delivery, registration, enforcement or the full amount making of payments in respect of this Indenture, the Notes or the Note Guarantees, excluding any such taxes, charges or similar levies imposed by any jurisdiction that is not a Taxing Jurisdiction other than those resulting from, or required to be paid in connection with, the enforcement of the moneys Notes following the occurrence of any Default or Event of Default.
(g) Any reference in this Indenture or the Notes to principal, interest or any other amount payable has not been received in respect of the Notes by the Paying Agent on Issuer or prior any of the Note Guarantees by the Guarantors will be deemed also to such due daterefer to any Additional Amount, it means unless the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice context requires otherwise, that may be payable with respect to that effect amount under the obligations referred to in this Section.
(h) The obligations of the Issuer and the Guarantors pursuant to this Section 4.05 shall have been duly given to the Series 18 Holders;survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (GOL Linhas Aereas S.A.)
Payment of Additional Amounts. i. The Partnership shall make all All payments on of principal and interest in respect of the Series 18 Preferred Units free and clear of and Notes will be made without withholding or deduction at source for, for or on account of, of any present or future taxes, fees, duties, assessments taxes or governmental charges duties of whatever nature imposed or levied by or on behalf of the Kingdom of Belgium, the United States, or by any Relevant Taxing Jurisdictionother Governmental Authority, or any political subdivision or taxing authority thereof or therein, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredrequired by law. In such event, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, Issuer will pay to the Series 18 Holders such additional amounts (the “"Additional Amounts”") as distributions as may shall be necessary so in order that every the net payment made to such holdersamounts received by any Noteholder or Couponholder, after such withholding or deduction deduction, shall equal the respective amounts of principal and interest which would have been receivable in respect of the Note or Coupon (including any as the case may be) in the absence of such withholding or deduction from deduction; provided, however, that no such Additional Amounts), Amounts shall be equal payable with respect to:
(a) any Note or Coupon presented for payment by, or on behalf of, a holder who is liable for such taxes or duties in respect of such Note or Coupon by reason of his having some connection with the Kingdom of Belgium or the United States, other than the mere holding of such Note or Coupon or the receipt of payments in respect thereto; or
(b) any Note or Coupon presented for payment more than 30 days after the Relevant Date except to the amounts extent that the Partnership holder thereof would otherwise have been required entitled to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts on presenting the same for payment on such thirtieth day; or
(c) any estate, inheritance, gift, sales, transfer, personal property or on account of:any similar tax, assessment or other governmental charge; or
a(d) any tax, feeassessment or other governmental charge which is payable otherwise than by withholding from payment of principal or interest, if any, with respect to such Note or Coupon; or
(e) any tax, duty, levy, assessment or other governmental charge of whatever nature that would not have been imposed but for the fact that such holder was a residentNoteholder or Couponholder presented (if presentation is required) such Note or Coupon for payment in the applicable taxing jurisdiction, domiciliary unless such Note or national ofCoupon could not have been presented for payment elsewhere; or
(f) any tax, assessment or engaged in business other governmental charge that is imposed 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 withheld by reason of the mere ownership of, failure to comply by the Noteholder or receipt Couponholder or the beneficial owner of payment under, the Series 18 Preferred Units Note or Coupon with a request of the Issuer or any Series 18 Preferred Units presented for payment Subsidiary Guarantor (where presentation a) to provide information concerning the nationality, residence or identity of the Noteholder or Couponholder or such beneficial owner or (b) to make any declaration or other similar claim or satisfy any information or reporting requirements, which, in the case of (a) or (b) is required or imposed by a statute, treaty, regulation or administrative practice of the applicable taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge; or
(g) in relation to Additional Amounts in respect of taxes and duties imposed or levied by the Kingdom of Belgium only, any Note or Coupon held by or on behalf of a holder who, at the time of issue of the Notes, was not an eligible investor within the meaning of Article 4 of the Royal Decree on 26 May 1994 on the deduction of withholding tax or who was an eligible investor at the time of issue of the Notes but, for payment) more than 30 days reasons within the holder's control, ceased to be an eligible investor or, at any relevant time on or after the Relevant Date issue of the Notes, otherwise failed to meet any other condition for the exemption of Belgian withholding tax pursuant to the law of 6 August 1993 relating to certain securities; or
(except h) any combination of (a) to (g); nor, in any case, with respect to the Issuer shall Additional Amounts be paid to any holder who is not the sole beneficial owner of such Note or Coupon to the extent that the holder a beneficial owner thereof would not have been entitled to payment of Additional Amounts had such amounts if it had presented beneficial owner been the holder of such units for payment on any day within such 30 day period)Note or Coupon. The “Relevant Date” means, Issuer shall be entitled to appoint an additional paying agent in respect the event payments by such paying agent will avoid the payment of any payment, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by the Paying Agent on or prior an Additional Amount pursuant to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;this Section 6.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership Company shall make pay the Holders all payments on the Series 18 Preferred Units free and clear of and without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as Amounts that may be necessary so that every net payment made to such holdersof interest, after such withholding principal or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to other amounts due under the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall Notes will not be required to pay any Additional Amounts less than the amount provided for in the Notes. “Net payment” in the preceding sentence shall mean the amount the Company or the Paying Agent pays the Holder after deducting or withholding an amount for or on account ofof any present or future taxes, duties, assessments or other governmental charges (“Taxes”) imposed with respect to that payment by a Mexican taxing authority, or any political subdivision or taxing authority thereof or therein (a “Relevant Jurisdiction”) (a “Net Payment”). However, the Company will not pay Additional Amounts to any holder for or on account of any of the following:
(a) any Taxes imposed because at any time there is or was a connection between the Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over the relevant holder or beneficial owner, if the relevant holder or beneficial owner is an estate, nominee, trust, partnership, limited liability company or corporation) of the Note and the Relevant Jurisdiction, including such Holder or beneficial owner (or a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over the relevant holder or beneficial owner) (i) being or having been a citizen or resident thereof for tax purposes, (ii) maintaining or having maintained an office, permanent establishment, or branch, in all cases subject to taxation therein to which such payments on the Notes are attributable, or (iii) being or having been present or engaged in a trade or business therein (other than the receipt of payments or the ownership or holding of a Note),
(b) any estate, inheritance, gift, sales, use, excise, transfer, personal property or similar tax, fee, duty, assessment or other governmental charge of whatever nature that would not have been imposed but for with respect to the fact that such holder was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, Notes,
(c) any Taxes imposed because the Relevant Taxing Jurisdiction Holder or any political subdivision thereof other person having a beneficial interest in the Notes fails to comply with any certification, information, documentation or otherwise had some connection other reporting requirement concerning the nationality, residence for tax purposes, certification or identity of the Holder or any beneficial owner of the Note with the Relevant Taxing Jurisdiction Jurisdiction, if compliance is required by statute, rule, regulation, officially published administrative practice of the taxing jurisdiction or by an applicable income tax treaty, which is in effect, to which Mexico is a party, as a precondition to exemption from, or reduction in the rate of, the tax or other governmental charge,
(d) any Taxes payable otherwise than by reason of deduction or withholding from payments on the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or notes,
(e) any Series 18 Preferred Units Taxes with respect to such note presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to holders, whichever occurs later, except to the extent that the holder holders of such note would have been entitled to such amounts if it had presented Additional Amounts on presenting such units note for payment on any day within date during such 30 day period). The “Relevant Date” means,
(f) any payment on the Note to a Holder that is a fiduciary, intermediary or partnership (including an entity treated as a partnership for tax purposes) or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, intermediary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note,
(g) any Taxes imposed on or in respect of Section 1471 through 1474 of the Code (“FATCA”) (or any paymentamended or successor version of FATCA), any current or future regulations or official interpretations thereof, any intergovernmental agreement between the United States and another jurisdiction facilitating the implementation of FATCA, the date laws of any Relevant Jurisdiction implementing FATCA or any such intergovernmental agreement, any agreement between either the Company and the United States or any authority thereof entered into for FATCA purposes, and any agreements entered into pursuant to Section 1471(b)(1) of the Code,
(h) any Taxes imposed in connection with a Note presented for payment by or on which behalf of a Holder or beneficial owner who would have been able to avoid such payment first becomes due Tax by presenting the relevant note to another paying agent, and
(i) any combination of the above. The limitations on our obligations to pay Additional Amounts stated in clause (c) above will not apply if (a) the provision of the certification, information, documentation or other evidence described in clause (c) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note, in such holder’s reasonable judgment, taking into account any relevant differences between U.S. and payableMexican law, but if rule, regulation or administrative practice, than comparable information or other reporting requirements imposed under U.S. tax law (including the United States-Mexico income tax treaty), regulation and published administrative practice, or (b) with respect to taxes imposed by Mexico or any political subdivision or taxing authority thereof or therein, Article 166, Section II, subsection a), of the Mexican Income Tax Law (or a substantially similar successor of such Article) is in effect, unless the provision of the certification, information, documentation or other evidence described in the third bullet is expressly required by statute, rule or regulation in order to apply Article 166, Section II, subsection a), of the Mexican Income Tax Law (or a substantially similar successor of such Article), the Company, cannot obtain such certification, information, documentation or other evidence on its own through reasonable diligence and the Company otherwise would meet the requirements for application of Article 166, Section II, subsection a), of the Mexican Income Tax Law (or such successor of such Article). In addition, such clause (c) does not require, and should not be construed as requiring, that any person, including any non-Mexican pension fund, retirement fund or financial institution, of any nature, register with, or provide information to, the Ministry of Finance and Public Credit or the Mexican Tax Service Administration (Servicio de Administración Tributaria, or the SAT) to establish eligibility for an exemption from, or a reduction of, Mexican withholding tax. Any reference in this Section 3.11, this Indenture, or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Company will be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this Section 3.11. In the event that Additional Amounts actually paid with respect to the Notes pursuant to the this Section 3.11 are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to us. However, by making such assignment, the holder makes no representation or warranty that the Company will be entitled to receive such claim for a refund or credit and Incurs no other obligation with respect thereto, including taking any action for such refund to be repaid. The Company shall remit the full amount of any Mexican Taxes withheld to the moneys payable has not been received by applicable taxing authorities in accordance with applicable law. The Company shall also provide the Paying Agent on or trustee at least five Business Days prior to the date of any payment of Additional Amounts with documentation satisfactory to the trustee including an Officer’s Certificate stating the fact that Additional Amounts will be payable and amount so payable and following such due date, it means payment such other documentation evidencing the first date on payment of Mexican or other Taxes in respect of which the full amount Company has paid any Additional Amounts. The Company shall provide copies of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given documentation to the Series 18 Holders;Holders or the relevant paying agent upon written request. In the event of any merger or other transaction described and permitted under Section 4.1, all references to Mexico, Mexican law or regulations, and Mexican taxing authorities under this section (other than the fourth and fifth paragraphs above) and under Section 5.1 hereof and under the heading "Redemption for Taxation Reasons" under section 5 on the reverse side of the Note shall be deemed to also include the relevant Qualified Merger Jurisdiction, the law or regulations of the relevant Qualified Merger Jurisdiction, and any taxing authority of the relevant Qualified Merger Jurisdiction, respectively.
Appears in 1 contract
Sources: Indenture
Payment of Additional Amounts. i. The Partnership shall make all All payments on made by ----------------------------- the Series 18 Preferred Units Company and the Guarantor under or with respect to the Securities and the Guarantees will be made free and clear of and without withholding or deduction at source for, for or on account of, of any present or future taxes, feesduties, dutieslevies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing JurisdictionAuthority ("Taxes"), unless such taxesthe Company or the Guarantor, feesas the case may be, duties, assessments or governmental charges are is required to be withheld withhold or deducted deduct Taxes by (i) law or by the laws (interpretation or administration thereof. In the event that the Company or the Guarantor is required to so withhold or deduct any regulations amount for or rulings promulgated thereunder) on account of any Relevant Taxing Jurisdiction for Taxes from any payment made under or with respect to the Series 18 Preferred Units Securities or (ii) an official position regarding the applicationGuarantees, 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredas the case may be, the Partnership shallCompany or the Guarantor, subject to as the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Acase may be, will pay to the Series 18 Holders such additional amounts (the “"Additional Amounts”") as distributions as may be necessary so that every the net payment made to such holders, amount received by each Holder of Securities (including Additional Amounts) after such withholding or deduction (including any will equal the amount that such withholding or deduction from Holder would have received if such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have Taxes had not been required to pay had be withheld or deducted; provided that no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account ofwill be payable with respect to a payment made to a Holder of Securities to the extent:
a(i) that any tax, fee, duty, assessment or governmental charge of whatever nature that such Taxes would not have been so imposed but for the fact that existence of any present or former connection between such holder was a residentHolder and the Taxing Authority imposing such Taxes (other than the mere receipt of such payment, domiciliary acquisition, ownership or national ofdisposition of such Securities or the exercise or enforcement of rights under such Securities, the Guarantees or this Indenture);
(ii) of any estate, inheritance, gift, sales, transfer, or engaged in business personal property Taxes imposed with respect to such Securities, except as otherwise provided herein;
(iii) that any such Taxes would not have been so imposed but for the presentation of such Securities 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 by reason of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment Guarantees (where presentation is required required) for payment) payment on a date more than 30 days after the Relevant Date (date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the holder beneficiary or Holder thereof would have been entitled to such amounts if it Additional Amounts had the Securities or Guarantees been presented such units for payment on any day within date during such 30 30-day period; or
(iv) that such Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar claim for exemp tion, if (x) the making of such declaration or claim is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 60 days prior to the first payment date with respect to which the Company or the Guarantor shall apply this subclause (iv), the Company or the Guarantor shall have notified all Holders of Securities in writing that they shall be required to provide such declaration or claim. The “Relevant Date” meansCompany or the Guarantor, as applicable, will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so de ducted or withheld to the relevant Taxing Authority in respect accordance with all applicable laws. The Company or the Guarantor, as applicable, will use its reasonable best efforts to obtain certified copies of tax receipts evidencing the payment of any paymentTaxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Company or the Guarantor, as the case may be, will, upon request, make available to the Holders of the Securities, within 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company or the Guarantor or if, notwith standing the Company's or the Guarantor's efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by the Company or the Guarantor. At least 30 days prior to each date on which such any payment first becomes under or with respect to the Securities is due and payable, but if the full amount Company or the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company or the Guarantor will deliver to the Trustee an Officers' Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable the Trustee to pay such Additional Amounts to Holders of Securities on the payment date. The foregoing provisions shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Company or the Guarantor, as the case may be, is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein. In addition, the Company will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in Luxembourg, Bermuda or the United States or any political subdivision or taxing authority of or in the foregoing in respect of the moneys creation, issue, offering, enforcement, redemption or retirement of the Securities. Whenever in this Indenture or the Securities there is mentioned, in any context, the payment of principal, redemption price or any other amount payable has not been received by under or with respect to any Security, such mention shall be deemed to include mention of the Paying Agent on or prior to such due date, it means the first date on which the full amount payment of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given Additional Amounts to the Series 18 Holders;extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership shall If, as a result of any change in applicable law, regulation or treaty, or in any official application or interpretation thereof after the date of this Agreement or, if later, the date a Lender becomes a Lender hereunder, the Borrower is required by law or regulation to make all payments on the Series 18 Preferred Units free and clear of and without any deduction, withholding or deduction at source forbackup withholding of any taxes, or on account oflevies, any present or future taxesimposts, duties, fees, duties, assessments liabilities or governmental similar charges of whatever nature imposed the United States of America, any possession or levied territory of the United States of America (including the Commonwealth of Puerto Rico) or any area subject to the jurisdiction of the United States of America ("U.S. Taxes") from any payments to a Lender in respect of Loans then or thereafter outstanding, or other amounts owing hereunder, the amount payable by or on behalf the Borrower will be increased to the amount which, after deduction from such increased amount of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are all U.S. Taxes required to be withheld or deducted by (i) therefrom, will yield the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for amount required under this Agreement to be payable with respect thereto; provided that the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every net payment made to such holders, after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership Borrower shall not be required to pay any Additional Amounts for additional amount pursuant to this subsection (c) to any Lender that (i) is not, on the date this Agreement is executed by such Lender or, if later, the date such Lender became a Lender hereunder, either (x) entitled to submit Form 1001 relating to such Lender and entitling it to a complete exemption from withholding on all amounts to be received by such Lender, including fees, pursuant to this Agreement and the Loans or on account of:
Form 4224 relating to all amounts to be received by such Lender, including fees, pursuant to this Agreement and the Loans or (y) a U.S. person (as such term is defined in Section 7701(a)(30) of the Code), or (ii) has failed to submit any form or certificate that it was required to file pursuant to subsection (a) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder was a resident, domiciliary or national ofthis Section 13.19 and entitled to file under applicable law, or engaged (iii) is no longer entitled to submit Form 1001 or Form 4224 as a result of any change 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 circumstances other than by reason of the mere ownership ofa change in applicable law, regulation or receipt of payment under, the Series 18 Preferred Units treaty or in any Series 18 Preferred Units presented for payment (where presentation is required for payment) more than official application or interpretation thereof. Within 30 days after the Relevant Date Borrower's payment of any such U.S. Taxes, the Borrower shall deliver to the Administrative Agent, for the account of the relevant Lender(s), originals or certified copies of official tax receipts evidencing such payment. The obligations of the Borrower under this subsection (except c) shall survive the payment in full of the Loans and the termination of the Commitments. If any Lender or the Administrative Agent determines it has received or been granted a credit against or relief or remission for, or repayment of, any taxes paid or payable by it because of any U.S. Taxes paid by a Borrower and evidenced by such a tax receipt, such Lender or the Administrative Agent shall, to the extent that it can do so without prejudice to the holder retention of the amount of such credit, relief, remission or repayment, pay to the Borrower such amount as such Lender or Administrative Agent determines is attributable to such deduction or withholding and which will leave such Lender or Administrative Agent (after such payment) in no better or worse position than it would have been entitled to in if such amounts if it Borrower had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by required to make such deduction or withholding. Nothing in this Agreement shall interfere with the Paying right of each Lender and the Administrative Agent on to arrange its tax affairs in whatever manner it thinks fit nor oblige any Lender or prior the Administrative Agent to disclose any information relating to its tax affairs or any computations in connection with such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;taxes.
Appears in 1 contract
Sources: Replacement Credit Agreement (Strategic Timber Trust Inc)
Payment of Additional Amounts. i. The Partnership shall make all (a) All payments on by the Series 18 Preferred Units Company (or any Paying Agent) in respect of the Notes or the Guarantors (or any Paying Agent) in respect of the Note Guarantees will be made free and clear of of, and without withholding or deduction at source for, for or on account of, any present or future taxes, fees, duties, assessments assessments, or other governmental charges of whatever a similar nature imposed or levied by or on behalf of Brazil or Luxembourg, or any Relevant political subdivision or authority therein or thereof or any other jurisdiction in which the Company or any Guarantor is organized, doing business or has a permanent establishment (any of the aforementioned being a “Taxing Jurisdiction”), unless the Company or the Guarantors (or any Paying Agent) are compelled by law to deduct or withhold such taxes, feesduties, assessments, or governmental charges. In such event, the Company or the Guarantors (or any Paying Agent), as applicable, will make such deduction or withholding, and make payment of the amount so withheld to the appropriate governmental authority and the Company or the Guarantors, as applicable, will pay such additional amounts as may be necessary to ensure that the net amounts receivable by Holders of Notes after such withholding or deduction shall equal the respective amounts of principal (and premium, if any) and interest which would have been receivable in respect of the Notes in the absence of such withholding or deduction (“Additional Amounts”). Notwithstanding the foregoing, no such Additional Amounts shall be payable:
(1) to, or to a third party on behalf of, a Holder who is liable for such taxes, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) in respect of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every net payment made to such holders, after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
a) any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder 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 Note by reason of the mere ownership ofexistence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of such Holder, if such Holder is an estate, a trust, a partnership, or a corporation) and the relevant Taxing Jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof, being incorporated in, being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein, other than the mere holding of the Note or enforcement of rights under this Indenture and the receipt of payment under, payments with respect to the Series 18 Preferred Units Note;
(2) in respect of Notes surrendered or any Series 18 Preferred Units presented for payment (where presentation if surrender or presentment is required for paymentrequired) more than 30 days after the Relevant Date (except to the extent that payments under such Note would have been subject to withholdings and the holder Holder of such Note would have been entitled to such amounts if it Additional Amounts, had presented such units the Note been surrendered for payment on the last day of such period of 30 days;
(3) to, or to a third party on behalf of, a Holder who is liable for such taxes, duties, assessments or other governmental charges by reason of such Holder’s failure to comply with any day within certification, identification, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder, if (1) compliance is required by law as a precondition to, exemption from, or reduction in the rate of, the tax, assessment or other governmental charge and (2) the Company has given the Holders at least 30 day period). The “Relevant Date” meansdays’ notice that Holders will be required to comply with such certification, identification, documentation or other reporting requirement;
(4) in respect of any paymentestate, inheritance, gift, sales, transfer, excise or personal property or similar tax, assessment or governmental charge;
(5) in respect of any tax, assessment or other governmental charge which is payable other than by deduction or withholding from payments of principal, premium (if any) or interest on the Note;
(6) in respect of any tax imposed on overall net income or any branch profits tax;
(7) in respect of any tax imposed pursuant to sections 1471 to 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), any successor law or regulation implementing or complying with, or introduced in order to conform to, such sections or any intergovernmental agreement in respect thereof or any agreement entered into pursuant to section 1471(b)(1) of the Code;
(8) in respect of any tax imposed by Luxembourg by virtue of the Luxembourg law of 23 December 2005, as amended from time to time (the “Relibi Law”); or
(9) in respect of any combination of the above.
(b) No Additional Amounts shall be paid with respect to any payment on a Note to a Holder who is a fiduciary, a partnership, a limited liability company or other than the sole beneficial owner of that payment to the extent that payment would be required by the relevant Taxing Jurisdiction to be included in the income, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or limited liability company or a beneficial owner who would not have been entitled to the Additional Amounts had that beneficiary, settlor, member or beneficial owner been the Holder.
(c) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above, neither the Company nor the Guarantors shall be required to make a payment with respect to any tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein.
(d) In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and, as a result thereof such Holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess to the Company. However, by making such assignment, the date on Holder makes no representation or warranty that the Company will be entitled to receive such claim for refund or credit and incurs no other obligation (including, for the avoidance of doubt, any filing or other action) with respect thereto.
(e) The Company and the Guarantors shall provide the Trustee with documentation evidencing the payment of taxes in respect of which the Company or the Guarantors, as applicable, have paid any Additional Amounts. Copies of such payment first becomes due documentation shall be made available by the Trustee to the Holders or the Paying Agents, as applicable, upon written request therefor.
(f) The Company shall also pay any present or future stamp, issue, registration, court or documentary taxes or any excise or property taxes, charges or similar levies (including any penalties, interest and payableother liabilities relating thereto) which arise in any jurisdiction from the execution, but if delivery, registration, enforcement or the full amount making of payments in respect of this Indenture, the Notes or the Note Guarantees, excluding any such taxes, charges or similar levies imposed by any jurisdiction that is not a Taxing Jurisdiction other than those resulting from, or required to be paid in connection with, the enforcement of the moneys Notes following the occurrence of any Default or Event of Default.
(g) Any reference in this Indenture or the Notes to principal, interest or any other amount payable has not been received in respect of the Notes by the Paying Agent on Company or prior any of the Note Guarantees by the Guarantors will be deemed also to such due daterefer to any Additional Amount, it means unless the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice context requires otherwise, that may be payable with respect to that effect amount under the obligations referred to in this Section.
(h) The obligations of the Company and the Guarantors pursuant to this Section 4.05 shall have been duly given to the Series 18 Holders;survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (GOL Linhas Aereas S.A.)
Payment of Additional Amounts. i. (a) The Partnership shall make all payments on the Series 18 Preferred Units free Company, and clear of and without withholding or deduction at source foreach Subsidiary Guarantor, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Abelow, pay to Holders of the Series 18 Holders such Notes additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every net payment made to such holders, after such withholding or deduction of interest (including any such withholding premium paid upon redemption of the Notes and any discount deemed interest under Netherlands law) or deduction from such Additional Amounts), shall be equal principal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership Holders shall not be required to pay less than the amount provided for in the Notes. The term “net payment” means the amount that the Company, any Additional Amounts Subsidiary Guarantor or a Paying Agent pays any Holder after deducting or withholding an amount for or on account ofof any present or future taxes, duties, assessments or other governmental charges imposed with respect to that payment by the Netherlands or any jurisdiction where the Company or any Subsidiary Guarantor is incorporated or resident for tax purposes or from or through which any payment in respect of the Notes is made by the paying agent or the Company, or any political subdivision thereof (a “Relevant Jurisdiction”), or any taxing authority of a Relevant Jurisdiction.
(b) The Company, and each Subsidiary Guarantor, shall not pay Additional Amounts to any Holder for or solely on account of any of the following:
a(i) any present or future taxes, duties, assessments or other governmental charges that would not have been imposed but for any present or former connection between the Holder (or a fiduciary, settlor, beneficiary, member or shareholder of the Holder) and the Relevant Jurisdiction (other than the mere receipt of a payment or the ownership or holding of a Note);
(ii) any estate, inheritance, capital gains, excise, personal property tax, feesales, dutytransfer, gift or similar tax, assessment or other governmental charge of whatever nature imposed with respect to the Notes;
(iii) any taxes, duties, assessments or other governmental charges that would not have been imposed but for the fact that such holder was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, failure of the Relevant Taxing Jurisdiction Holder or any political subdivision thereof other Person to comply with any certification, identification or otherwise had some other reporting requirement concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, for tax purposes, of the Holder or any beneficial owner of the Note if compliance is required by law, regulation or by an applicable income tax treaty to which the Relevant Jurisdiction is a party, as a precondition to exemption from, or reduction in the rate of, the tax, assessment or other governmental charge and the Company has given the Holders at least 30 days’ notice that Holders will be required to provide such certification, identification or information;
(iv) any tax, duty, assessment or other governmental charge payable otherwise than by reason deduction or withholding from payments on or in respect of the mere ownership ofNotes;
(v) any present or future taxes, duties, assessments or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units other governmental charges with respect to a Note presented for payment (payment, where presentation is required for payment) required, more than 30 days after the Relevant Date (date on which the payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later, except to the extent that the holder Holder of such Note would have been entitled to such amounts if it had presented Additional Amounts on presenting such units Note for payment on any day within date during such 30 30-day period). The “Relevant Date” means;
(vi) any withholding or deduction that is required to be made pursuant to EC Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings income, or any law implementing or complying with, or introduced in order to conform to, such Directive;
(vii) any payment on the Note to a Holder that is a fiduciary, a partnership, a limited liability company or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership, an interestholder in such a limited liability company or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note; or
(viii) in the case of any combination of the items listed above.
(c) Upon request, the Company or any Subsidiary Guarantor, as applicable, shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of taxes in respect of which the Company or such Subsidiary Guarantor has paid any payment, Additional Amount. The Company shall make copies of such documentation available to the date on which such payment first becomes due and payable, but if the full amount Holders of the moneys payable has not been received by Notes or the relevant Paying Agent on upon request.
(d) Any reference in this Indenture or prior the Notes to such due dateprincipal, it means premium, interest or any other amount payable in respect of the first date on which Notes by us will be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the full amount obligations referred to in this section.
(e) In the event of any merger or other transaction described and permitted under Section 4.1, then all references to the Netherlands, Netherlands law or regulations, and Netherlands political subdivisions or taxing authorities under this Section 3.18 and under Article IV and Section 5 of Exhibit A will be deemed to also include the jurisdiction of incorporation or tax residence of the Surviving Entity, if different from the Netherlands, and any political subdivision therein or thereof, law or regulations, and any taxing authority of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holders;other jurisdiction or any political subdivision therein or thereof, respectively.
Appears in 1 contract
Payment of Additional Amounts. i. The Partnership 10.7.1 All payments in respect of the Securities shall make all payments on the Series 18 Preferred Units free and clear of and be made without withholding or deduction at source for, for or on account of, of any present or future taxes, feesduties, assessments or other governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or on behalf of Brazil (“Brazilian Taxes”), the Netherlands (“Dutch Taxes”) or any other jurisdiction or political subdivision thereof having power to tax in which the Company or any successor thereto is organized or incorporated or is a resident for tax purposes (“Foreign Taxes”), as applicable (each such jurisdiction, a “Relevant Taxing Jurisdiction”), unless the Company or the Guarantor, as the case may be, is compelled by law to deduct or withhold such taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) charges. In the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction for the Series 18 Preferred Units or (ii) an official position regarding the application, administration, interpretation or enforcement event of any such laws, regulations or rulings (including a holding by a court of competent jurisdiction or by a taxing authority in any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requireddeduction, the Partnership shallCompany or the Guarantor, subject as the case may be, shall make such deduction or withholding, will make payment of the amount so withheld to the limitations appropriate governmental authority and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule A, will pay to the Series 18 Holders each Holder such additional amounts (the “Additional Amounts”) as distributions as may be necessary so in order that every net payment made to by the Company or the Guarantor, as the case may be, on the Securities after such holderswithholding or deduction for or on account of any Brazilian Taxes, after Dutch Taxes or Foreign Taxes will equal the respective amounts of principal, premium, if any, and interest which would have been receivable in respect of such Securities had no such withholding or deduction (including for any Foreign Taxes payable in respect of Additional Amounts) been required, except that no such Additional Amounts shall be payable with respect to any payment on a Security:
(i) to, or to a third party on behalf of, a Holder who is liable for any such withholding taxes, duties, assessments or deduction from other governmental charges in respect of such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account of:
Security by reason of (a) a connection between the Holder and a Relevant Taxing Jurisdiction other than the mere holding of such Security and the receipt of payments with respect to such Security or (b) failure by the Holder to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with a Relevant Taxing Jurisdiction, of such Holder, if such compliance is required or imposed by law as a precondition to exemption from all or a part of such tax, fee, duty, assessment or other governmental charge and the Company or the Guarantor, as applicable, has given the Holders at least 30 days’ notice that Holders will be required to comply with such requirement;
(ii) in respect of whatever nature that would not have been imposed but for the fact that any such holder was taxes, duties, assessments or other governmental charges with respect to 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 by reason of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment Security surrendered (where presentation if surrender is required for paymentrequired) more than 30 days after the Relevant Date (date on which such payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the holder Holder of such Security would have been entitled to such amounts if it had presented Additional Amounts on surrender of such units Security for payment on any the last day within of such 30 30-day period). The “Relevant Date” means, in respect ; Table of Contents (iii) where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to any payment, European Union Directive on the date on which such payment first becomes due and payable, but if taxation of savings implementing the full amount conclusions of the moneys payable has not been received by the Paying Agent on ECOFIN Council meeting of November 26-27, 2000 or prior any law implementing or complying with, or introduced in order to conform to, such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 18 Holdersdirective;
Appears in 1 contract
Sources: Indenture (Embraer S.A.)
Payment of Additional Amounts. i. The Partnership shall make all All payments on made by the Series 18 Preferred Units Company, Tyco and any other Guarantor under or with respect to the Notes and the Guarantees will be made free and clear of and without withholding or deduction at source for, for or on account of, of any present or future taxes, feesduties, dutieslevies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing JurisdictionAuthority (“Taxes”), unless the Company, Tyco or such taxesGuarantor, feesas the case may be, duties, assessments or governmental charges are is required to be withheld withhold or deducted deduct Taxes by (i) law or by the laws (interpretation or administration thereof. In the event that the Company, Tyco or such Guarantor is required to so withhold or deduct any regulations amount for or rulings promulgated thereunder) on account of any Relevant Taxing Jurisdiction for Taxes from any payment made under or with respect to the Series 18 Preferred Units Notes or (ii) an official position regarding the applicationGuarantees, 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is requiredas the case may be, the Partnership shallCompany and Tyco or such Guarantor, subject to as the limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to this Part XIX of Schedule Acase may be, will pay to the Series 18 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that every the net payment made to such holders, amount received by each Holder of Notes (including Additional Amounts) after such withholding or deduction (including any will equal the amount that such withholding or deduction from Holder would have received if such Additional Amounts), shall be equal to the amounts the Partnership would otherwise have Taxes had not been required to pay had be withheld or deducted; provided that no such withholding or deduction been required.
ii. The Partnership shall not be required to pay any Additional Amounts for or on account ofwill be payable with respect to a payment made to a Holder of Notes to the extent:
(a) that any tax, fee, duty, assessment or governmental charge of whatever nature that such Taxes would not have been so imposed but for the fact that existence of any present or former connection between such holder was a residentHolder and the Taxing Authority imposing such Taxes (other than the mere receipt of such payment, domiciliary acquisition, ownership or national ofdisposition of such Notes or the exercise or enforcement of rights under such Notes, the Guarantees or the Indenture);
(b) of any estate, inheritance, gift, sales, transfer, or engaged in business personal property Taxes imposed with respect to such Notes, except as otherwise provided herein;
(c) that any such Taxes would not have been so imposed but for the presentation of such Notes 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 by reason of the mere ownership of, or receipt of payment under, the Series 18 Preferred Units or any Series 18 Preferred Units presented for payment Guarantees (where presentation is required required) for payment) payment on a date more than 30 days after the Relevant Date (date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the holder beneficiary or Holder thereof would have been entitled to such amounts if it Additional Amounts had the Notes or Guarantees been presented such units for payment on any day within date during such 30 30-day period; or
(d) that such Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar claim for exemption, if (x) the making of such declaration or claim is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 60 days prior to the first payment date with respect to which the Company and Tyco or such Guarantor shall apply this clause (d), the Company and Tyco or such Guarantor shall have notified all Holders of Notes in writing that they shall be required to provide such declaration or claim. The “Relevant Date” meansCompany and Tyco or such Guarantor, as the case may be, will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Authority in respect accordance with all applicable laws. The Company and Tyco or such Guarantor, as the case may be, will use their or its reasonable best efforts to obtain certified copies of tax receipts evidencing the payment of any paymentTaxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Company, Tyco or such Guarantor, as the case may be, will, upon request, make available to the Holders of the Notes, within 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company, Tyco or such Guarantor or if, notwithstanding the Company’s and Tyco’s or such Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by the Company and Tyco or such Guarantor. At least 30 days prior to each date on which such any payment first becomes under or with respect to the Notes or Guarantees is due and payable, but if the full amount Company and Tyco or such Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company and Tyco or such Guarantor will deliver to the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and setting forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to Holders of Notes on the payment date. In addition, the Company and Tyco or such Guarantor, as the case may be, will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in Luxembourg, Bermuda or the United States or any political subdivision or taxing authority of or in the foregoing in respect of the moneys payable has not been received by creation, issue, offering, enforcement, redemption or retirement of the Paying Agent on Notes or prior the Guarantees. The foregoing provisions shall survive any termination of or the discharge of the Indenture and shall apply mutatis mutandis to such due date, it means the first date on any jurisdiction in which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given any successor Person to the Series 18 Holders;Company, Tyco or such Guarantor, as the case may be, is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein. Whenever in the Indenture, the Notes or the Guarantees there is mentioned, in any context, the payment of principal (and premium, if any), redemption price, interest or any other amount payable under or with respect to any Notes or Guarantees, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.”
Appears in 1 contract
Sources: Supplemental Indenture (Tyco International LTD /Ber/)