Additional Amounts. All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such 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 any Note: (a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period; (b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge; (c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein; (d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge; (e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France; (f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder; (g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005; (h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts; (i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes; (j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or (k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 4 contracts
Samples: Indenture (CGG), Indenture (CGG Marine B.V.), Indenture (CGG Marine B.V.)
Additional Amounts. All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agenta Guarantor, if any) or other applicable withholding agent is so required by law to deduct or withhold taxes imposed by Bermuda or deduct any amount for or another Relevant Tax Jurisdiction on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect payments to the Notes or the Subsidiary GuaranteesHolders, the Company or any such Guarantor it will pay to each any Holder of the Notes that are outstanding on the date of the required payment, such so entitled all additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as that may be necessary so that the net every Net Payment of interest, principal, premium or other amount received by such Holder (including the Additional Amounts) after such withholding beneficial owner on that Note or deduction the Note Guarantee will not be less than the amount such Holder would have received if such Taxes had not been withheld provided for in that Note or deducted, provided that no Additional Amounts will be payable with respect to any Note:the Note Guarantee.
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of The Company (and Guarantors, if any) will also indemnify and reimburse Holders for:
(1) Taxes (including any interest, penalties and related expenses) imposed on the date on which such payment first became due and Holders (2) or if the full amount payable has a Holder is not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due dateowner, the date on which, the full amount having been so received, notice to that effect shall have been given beneficial owner) by a Relevant Tax Jurisdiction if and to the Holders except to the same extent that the a Holder or the beneficial owner would have been entitled to such Additional Amounts receive additional amounts if the Company (or a Guarantor) or other applicable withholding agent had been required to deduct or withhold those taxes from payments on surrendering such the Notes or the Note for payment on Guarantees; and
(2) Stamp, court, documentary or similar taxes or charges (including any day during interest, penalties and related expenses) imposed by a Relevant Tax Jurisdiction in connection with the applicable 30-day period;execution, delivery, enforcement or registration of the Notes or the Note Guarantees or other related documents and obligations.
(b) if The Company (or a Guarantor) will not pay additional amounts to any Holder for or on account of any of the following:
(1) Any tax, assessment or other governmental charge imposed solely because at any time there is imposed or withheld by reason was a connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of or possessor of power over the failure to comply by relevant Holder if the Holder oris an estate, nominee, trust, partnership, limited liability company, or corporation) and the Relevant Tax Jurisdiction imposing the tax (other than the mere receipt of a payment or the acquisition, ownership, disposition or holding of, or enforcement of rights under, a Note or the Note Guarantees);
(2) Any estate, inheritance, gift or any similar tax, assessment or other governmental charge;
(3) Any tax, assessment or other governmental charge imposed solely because such Holder (or if differentsuch Holder is not the beneficial owner, the beneficial owner (ayant-droitowner) of the Note fails to comply with a request addressed to such Holder or beneficial owner to provide informationany certification, documents identification or other evidence reporting requirement concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction taxing jurisdiction of such Holder or any beneficial owner which of the Note or the Note Guarantees, if compliance is required by law or imposed by an applicable income tax treaty to which the jurisdiction imposing the tax is a statuteparty, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to an exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of charge for which such Holder is eligible and the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereofa Guarantor) or an intergovernmental agreement between has given the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, Holders at least 60 days’ notice that Holders will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company provide such information and identification; and
(4) Any tax, assessment or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or other governmental charge with respect to the Notes a Note or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such a Note Guarantee presented for payment (unless such obligation to pay Additional Amounts arises more than 30 days after the 30th day prior to the date on which payment under became due and payable or with respect the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact extent that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders Holder of the Notes Note would have been entitled to additional amounts on presenting the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided Note for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on any date during the Notes and any department or any political subdivision thereof or therein30-day period.
Appears in 4 contracts
Samples: Indenture (Aircastle LTD), Indenture (Aircastle LTD), Indenture (Aircastle LTD)
Additional Amounts. All The Guarantor shall make all payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made Guarantee free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or on behalf of (i) Ireland or any political subdivision or any authority or agency therein or thereof having power to tax, (ii) any other jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or is otherwise resident for tax purposes or any political subdivision thereof or any authority or agency therein or thereof having the power to tax, or (iii) any jurisdiction by from or through which payment under or with respect to the Guarantee is made or any political subdivision or any authority or agency therein or thereof having the power to tax (each, each a “Relevant Taxing Jurisdiction”), unless the Company withholding or any Guarantor (or any Paying Agent) deduction of such Taxes is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the official interpretation or administration thereof by the relevant taxing authoritythereof. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesGuarantee, the Company or any such Guarantor will shall pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder a holder (including the Additional Amounts) after such withholding or deduction (including any such withholding or deduction in respect of such Additional Amounts) will not be less than the amount such Holder holder would have received if such Taxes had not been withheld or deducted; provided, provided however, that no the foregoing obligation to pay Additional Amounts will be payable with respect shall not apply to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) any Taxes that would not have been so imposed but for the date existence of any present or former connection between the Holder, applicable recipient of payment or beneficial owner of the Notes or any payment in respect of such Notes (each, a “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, partnership, trust, corporation or other business entity) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on which a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction, but excluding a connection arising solely from the acquisition, ownership or holding of such Note or the receipt of any payment first became due and in respect of such Note or the Guarantee or the exercise or enforcement of rights under such Note or the Guarantee); (2) if the full amount payable has not been received by any estate, inheritance, gift, sales, use, value added, excise, transfer, personal property tax or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any similar tax, assessment or other governmental charge is charge; (3) any Taxes imposed or withheld by reason as a result of the failure of the relevant holder of the Notes to comply by the Holder or, if different, the beneficial owner (ayant-droit) with a timely request in writing of the Note Issuer or the Guarantor (such request being made at a time that would enable such relevant holder acting reasonably to comply with a request addressed to such Holder or beneficial owner that request) to provide information, documents or other evidence information concerning the such relevant holder’s nationality, residence, identity or connection with the any Relevant Taxing Jurisdiction of Jurisdiction, if and to the extent that due and timely compliance with such Holder or beneficial owner which is required or imposed by a statute, treatyrequest under applicable law, regulation or administrative practice would have reduced or eliminated such Taxes with respect to such relevant holder; (4) any Taxes that are payable other than by deduction or withholding from a payment on the Guarantee; (5) any Taxes that would not have been so imposed if the relevant holder had presented the Note for payment (where presentation is required) to, or otherwise accepted payment from, another paying agent in a member state of the Relevant Taxing Jurisdiction European Union; or (6) any Taxes withheld or deducted pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986, as a precondition to exemption from all amended, or part any comparable or successor version of such taxSections, assessment any U.S. Treasury regulations promulgated thereunder, any official interpretations thereof or governmental charge;
any agreements or treaties (cincluding any law implementing any such agreement or treaty) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes entered into in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than implementation thereof; nor will the mere purchase, holding Guarantor pay Additional Amounts (a) to the extent the payment could have been made without such deduction or disposition of any Note, withholding if the Note had been presented for payment (where presentation is permitted or required for payment) within 30 days after the date on which such payment or such Note became due and payable or the receipt of payments made by or date on behalf of the Company or any Guarantor in respect which payment thereof or any Subsidiary Guaranteeis duly provided for, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a)whichever is later, (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any a Note or Subsidiary Guarantee to any Holder holder who 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 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 any the Additional Amounts had such beneficiary or settlor beneficiary, settlor, member or beneficial owner been the Holder;
actual holder of such Note, or (gc) in respect of any Note to the extent such withholding or deduction is imposed or levied on as a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or result of any Guarantor; or
(k) Any combination of items clauses (1), (2), (3), (4), (5), (6), (a) through and (jb) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholdingparagraph. The Company or Guarantor shall make any Guarantor will also make such required withholding or deduction and remit the full amount deducted or withheld to the relevant authority Relevant Taxing Jurisdiction in accordance with applicable law. The Company will furnishGuarantor shall provide the Trustee, within 60 days after for the date benefit of the Holders, with official receipts evidencing the payment of any Taxes so withheld or deducted. If, notwithstanding the Guarantor’s efforts to obtain such receipts, the same are not obtainable, the Guarantor shall provide the Trustee with other evidence. In no event, however, shall the Guarantor be required to disclose any information that the Guarantor reasonably deems to be confidential. If the Guarantor is due pursuant or will become obligated to applicable lawpay Additional Amounts under or with respect to any payment made on the Guarantee, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At at least 30 days prior to each the date on which any payment under or with respect of such payment, the Guarantor shall deliver to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent Trustee an Officers’ Officer’s Certificate stating the fact that such Additional Amounts will be payable, payable and the amount so payable and will set forth such other information as necessary to enable such the Paying Agent to pay such Additional Amounts to the Holders of the Notes holders on the relevant payment date. Whenever in the Indenture, this Supplemental Indenture or the Notes there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.:
Appears in 3 contracts
Samples: Fourth Supplemental Indenture (Allegion PLC), First Supplemental Indenture (Allegion PLC), Second Supplemental Indenture (Allegion PLC)
Additional Amounts. All payments made (a) The Company hereby agrees that any amounts to be paid by or on behalf of the Company or any Guarantor under or with respect to the Notes each Security shall be paid without deduction or the Subsidiary Guarantees will be made free withholding for any and clear of all present and without withholding or deduction for or on account of any present or future taxtaxes, dutylevies, levy, impost, assessment imposts or other governmental charge (including without limitationcharges whatsoever imposed, penaltiesassessed, interest and any other liability with respect thereto) (“Taxes”) imposed levied or levied collected by or on behalf for the account of any jurisdiction in which (i)(x) the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes United Kingdom or any political subdivision or taxing authority thereof or therein (y) the jurisdiction of tax residence (other than the United States or any political subdivision or taxing authority thereof) of a successor entity to the Company pursuant to Section 8.1, to the extent that such taxes, levies, imposts or other governmental charges first become applicable as a result of such successor entity becoming the obligor on the Securities, or (ii) any other jurisdiction by (other than the United States, or any political subdivision or taxing authority thereof) from or through which payment any amount is made paid by the Company hereunder or where it is resident or maintains a place of business or permanent establishment (each, each jurisdiction described in Clauses (i) and (ii) above is referred to herein as a “Relevant Taxing Jurisdiction” and such taxes, levies, imposts or other governmental charges are referred to as “Taxes”), unless the Company withholding or deduction of such Tax is compelled by laws of the United Kingdom, or any Guarantor other applicable Taxing Jurisdiction. If any deduction or withholding of any Taxes (other than Excluded Taxes, as defined below) is ever required by the United Kingdom or any other Taxing Jurisdiction, the Company shall (subject to compliance by the Holder or beneficial owner of each Security with any applicable administrative requirements) pay such additional amounts (“Additional Amounts”) required to make the net amounts paid to each Holder of such Security or the Trustee pursuant to the terms of this Indenture or the Securities, after such deduction or withholding, equal to the amounts of principal, premium, if any, interest, if any, and sinking fund or analogous payments, if any, to which such Holder or the Trustee is entitled. However, the Company shall not be required to pay Additional Amounts in respect of the following Taxes (“Excluded Taxes”):
(1) any present or future Taxes imposed, assessed, levied or collected as a result of the Holder or beneficial owner of a Security (i) being organized under the laws of, or otherwise being or having been a domiciliary, national or resident of, (ii) being engaged or having been engaged in a trade or business in, (iii) having or having had its principal office located in, (iv) maintaining or having maintained a permanent establishment in, (v) being or having been physically present in, or (vi) otherwise having or having had some connection (other than the connection arising solely from holding or owning such Security, or collecting principal and interest, if any, on, or the enforcement of, such Security) with the United Kingdom or any other applicable Taxing Jurisdiction;
(2) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, the relevant Security was presented more than thirty days after the date the relevant payment is first made available for payment to the Holder or beneficial owner;
(3) any present or future Taxes imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any Paying Agentrelated law or administrative practices or procedures) is required implementing the foregoing or any agreements entered into pursuant to withhold or deduct Taxes under the laws current Section 1471(b)(1) of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor Code (or any Paying Agentamended or successor version described above);
(4) is so required to withhold any present or deduct future Taxes payable other than by deduction or withholding from payments under, or with respect to, any amount for Security;
(5) any present or on account of future Taxes imposed in connection with a Security presented for payment (where presentation is permitted or levied required for payment) by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such 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 any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of the Security to provide informationthe extent such Taxes could have been avoided by presenting the relevant Security to, documents or otherwise accepting payment from, another Paying Agent;
(6) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the failure to make any certification, identification or other evidence report concerning the nationality, residence, identity or connection with the Relevant United Kingdom or any other applicable Taxing Jurisdiction of such the Holder or beneficial owner which is required of such Security or imposed by claim for relief or exemption, if making such a statutecertification, treatyidentification, regulation other report or administrative practice claim is, under the laws, rules or regulations of the Relevant Taxing Jurisdiction as any such jurisdiction, a precondition condition to relief or exemption from all or part of such tax, assessment or governmental chargeTaxes;
(c7) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment Tax or other governmental charge;duty; or
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of 8) any combination of Clauses (a)1) through (7) above; provided further, (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor that no such Additional Amounts shall be payable in respect of any Note or Subsidiary Guarantee to Security held by (x) any Holder who or beneficial owner that is a fiduciary or partnership or other than not the sole beneficial owner of such payment Security, or that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, but only to the extent that a beneficiary or settlor with respect to the fiduciary or a beneficial owner owner, partner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to any such Additional Amounts had such beneficiary the beneficiary, settlor, beneficial owner, partner or settlor or beneficial owner member been the Holder;
(g) direct holder of such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inSecurity, or (y) paid or accrued to any Holder that is not a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A resident of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect United States to the Notes;
(j) when extent that, had such withholding or deduction is required to be made by reason Holder been a resident of the Holder or United States and eligible for the beneficial owner of the Note concurrently being a shareholder of the Company or benefit of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement double taxation treaty between the United States and another jurisdiction facilitating the implementation thereof applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security, such Holder would not have been entitled to such Additional Amounts, or (z) any Holder that is a resident of the United States but that is not eligible for the benefit of any double taxation treaty between the United States and the applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security (but only to the extent the amount of such deduction or any fiscal or regulatory legislation, rules or practices implementing withholding exceeds that which would have been required had such an intergovernmental agreement) (any such withholding or deduction, Holder of a “FATCA Withholding”Security been so eligible and made all relevant claims). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will successor to the Company, as the case may be, agrees to indemnify and hold harmless each Holder of a Security and upon written request reimburse each Holder for the amount of (i) any Taxes levied or imposed and paid by such Holder of a Security (other than Excluded Taxes) as a result of payments made with respect to such Security, (ii) any liability (including penalties, interest and expenses) arising therefrom with respect thereto, and (iii) any Taxes (other than Excluded Taxes) with respect to payment of Additional Amounts or any reimbursement pursuant to this sentence, in each case, to the extent not otherwise reimbursed by the payment of any Additional Amount and not excluded from the requirement to pay Additional Amounts, as described above. The Company or any successor to the Company, as the case may be, shall also (i) make such withholding or deduction to the extent required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishor any successor to the Company, as the case may be, shall furnish the Trustee within 60 30 days after the date the payment of any such Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to evidencing the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available successor to the Holders upon requestCompany, as the case may be, or other evidence of such payment reasonably satisfactory to the Trustee. It is understood, however, that the Trustee is under no obligation to request such certified copies of tax receipts evidencing the payment. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Securities is due and payable, if the Company or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)those payments, the Company will shall deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and stating the amount so amounts that will be payable and will set setting forth such any other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes Securities on the payment date. Whenever in this Indenture or any Security there is mentioned, in any context, (a) the payment of principal (and the principal, premium, if any), (b) purchase prices or interest, or sinking fund or analogous payment, if any, in connection with a purchase respect of the Notes, (c) such Security or overdue principal or overdue interest or (d) any other amount payable on overdue sinking fund or with respect to any of the Notes or the Subsidiary Guaranteesanalogous payment, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section herein to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as thereof pursuant to the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic provisions of France or this Section and express mention thereof in any jurisdiction provisions hereof shall not be construed as excluding Additional Amounts in which a Paying Agent those provisions hereof where such express mention is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto not made (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveif applicable). The obligations of the Company or (and any Guarantor described in successor entity to the Company pursuant to Section 8.1) under this Section 4.19 will 10.5 shall survive any termination, defeasance or satisfaction and discharge the termination of this Indenture and the payment of all amounts under or with respect to the Securities.
(b) Each Holder of a Security, by acceptance of such Security, agrees that, with reasonable promptness after receiving written notice from the Company to the effect that such Xxxxxx is eligible for a refund in respect of Taxes actually paid by the Company pursuant to this Section 10.5, such Holder will sign and deliver, as reasonably directed by the Company, any transfer form provided to such Holder by the Company to enable such Holder to obtain a refund in respect of such Taxes; and if such Holder thereafter receives such refund in respect of such Taxes, such Holder will promptly pay such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority). If a Holder applies for a refund of such Taxes prior to a request by the Company to apply for such a refund, the Holder will, upon receipt of a request by the Company to apply for, or to turn over the proceeds of, any such refund, pay any such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority), promptly upon receipt of such refund. The Company shall pay all reasonable out-of-pocket expenses incurred by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction Holder in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which connection with obtaining such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinrefund.
Appears in 3 contracts
Samples: Indenture (Carnival PLC), Indenture (Carnival PLC), Indenture (Carnival PLC)
Additional Amounts. All payments made (a) The Company hereby agrees that any amounts to be paid by or on behalf of the Company or any Guarantor under or with respect to the Notes each Security shall be paid without deduction or the Subsidiary Guarantees will be made free withholding for any and clear of all present and without withholding or deduction for or on account of any present or future taxtaxes, dutylevies, levy, impost, assessment imposts or other governmental charge (including without limitationcharges whatsoever imposed, penaltiesassessed, interest and any other liability with respect thereto) (“Taxes”) imposed levied or levied collected by or on behalf for the account of any jurisdiction in which (i)(x) the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes United Kingdom or any political subdivision or taxing authority thereof or therein (y) the jurisdiction of tax residence (other than the United States or any political subdivision or taxing authority thereof) of a successor entity to the Company pursuant to Section 8.1, to the extent that such taxes, levies, imposts or other governmental charges first become applicable as a result of such successor entity becoming the obligor on the Securities, or (ii) any other jurisdiction by (other than the United States, or any political subdivision or taxing authority thereof) from or through which payment any amount is made paid by the Company hereunder or where it is resident or maintains a place of business or permanent establishment (each, each jurisdiction described in Clauses (i) and (ii) above is referred to herein as a “Relevant Taxing Jurisdiction” and such taxes, levies, imposts or other governmental charges are referred to as “Taxes”), unless the Company withholding or any Guarantor (or any Paying Agent) deduction of such Tax is required to withhold or deduct Taxes under the compelled by laws of the Relevant United Kingdom, or any other applicable Taxing Jurisdiction Jurisdiction. If any deduction or withholding of any Taxes (other than Excluded Taxes, as defined below) is ever required by the interpretation or administration thereof by the relevant taxing authority. If the Company United Kingdom or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant other Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesJurisdiction, the Company shall (subject to compliance by the Holder or beneficial owner of each Security with any such Guarantor will applicable administrative requirements) pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that required to make the net amount received by amounts paid to each Holder of such Holder (including Security or the Additional Amounts) Trustee pursuant to the terms of this Indenture or the Securities, after such withholding deduction or deduction will not be less than withholding, equal to the amount amounts of principal, premium, if any, interest, if any, and sinking fund or analogous payments, if any, to which 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 any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment Trustee is entitled. However, the Company shall not be required to pay Additional Amounts in respect of principal more than 30 days after the later of following Taxes (“Excluded Taxes”):
(1) the date on which such payment first became due and (2) if the full amount payable has not been received by any present or on behalf future Taxes imposed, assessed, levied or collected as a result of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of a Security (i) being organized under the laws of, or otherwise being or having been a domiciliary, national or resident of, (ii) being engaged or having been engaged in a trade or business in, (iii) having or having had its principal office located in, (iv) maintaining or having maintained a permanent establishment in, (v) being or having been physically present in, or (vi) otherwise having or having had some connection (other than the connection arising from holding or owning such Security, or collecting principal and interest, if any, on, or the enforcement of, such Security) with the United Kingdom or any other applicable Taxing Jurisdiction;
(2) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, the relevant Security was presented more than thirty days after the date the payment became due or was provided for, whichever is later;
(3) any present or future Taxes imposed under Sections 1471-1474 of the United States Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder, or any present or future Taxes imposed under comparable provisions of non-United States tax law;
(4) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the failure to provide informationmake any certification, documents identification or other evidence report concerning the nationality, residence, identity or connection with the Relevant United Kingdom or any other applicable Taxing Jurisdiction of such the Holder or beneficial owner which is required of such Security or imposed by claim for relief or exemption, if making such a statutecertification, treatyidentification, regulation other report or administrative practice claim is, under the laws, rules or regulations of the Relevant Taxing Jurisdiction as any such jurisdiction, a precondition condition to relief or exemption from all or part of such tax, assessment or governmental chargeTaxes;
(c5) held by any present or future Taxes imposed on behalf of a payment to a Holder and required to be made pursuant to any law implementing European Council Directive 2003/48/EC or any other directive implementing the beneficial owner who is liable for Taxes in respect conclusions of such Note by reason the ECOFIN Council meeting of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding 26-27 November 2000 or disposition of any Notelaw implementing or complying with, or the receipt of payments made by or on behalf of the Company or any Guarantor introduced in respect thereof or any Subsidiary Guarantee, including, without limitationorder to conform to, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment thereindirective;
(d6) any present or future Taxes imposed on account a payment to, or with respect to, a Holder who would have been able to avoid such Taxes by presenting the relevant Security to a paying agent in a member state of the European Union;
(7) any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment Tax or other governmental charge;duty; or
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of 8) any combination of Clauses (a)1) through (7) above; provided further, (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor that no such Additional Amounts shall be payable in respect of any Note or Subsidiary Guarantee to Security held by (x) any Holder who or beneficial owner that is a fiduciary or partnership or other than not the sole beneficial owner of such payment Security, or that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, but only to the extent that a beneficiary or settlor with respect to the fiduciary or a beneficial owner owner, partner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to any such Additional Amounts had such beneficiary the beneficiary, settlor, beneficial owner, partner or settlor or beneficial owner member been the Holder;
(g) direct holder of such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inSecurity, or (y) paid or accrued to any Holder that is not a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A resident of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect United States to the Notes;
(j) when extent that, had such withholding or deduction is required to be made by reason Holder been a resident of the Holder or United States and eligible for the beneficial owner of the Note concurrently being a shareholder of the Company or benefit of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement double taxation treaty between the United States and another jurisdiction facilitating the implementation thereof applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security, such Holder would not have been entitled to such Additional Amounts, or (z) any Holder that is a resident of the United States but that is not eligible for the benefit of any double taxation treaty between the United States and the applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security (but only to the extent the amount of such deduction or any fiscal or regulatory legislation, rules or practices implementing withholding exceeds that which would have been required had such an intergovernmental agreement) (any such withholding or deduction, Holder of a “FATCA Withholding”Security been so eligible and made all relevant claims). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will successor to the Company, as the case may be, agrees to indemnify and hold harmless each Holder of a Security and upon written request reimburse each Holder for the amount of (i) any Taxes levied or imposed and paid by such Holder of a Security (other than Excluded Taxes) as a result of payments made with respect to such Security, (ii) any liability (including penalties, interest and expenses) arising therefrom with respect thereto, and (iii) any Taxes (other than Excluded Taxes) with respect to payment of Additional Amounts or any reimbursement pursuant to this sentence, in each case, to the extent not otherwise reimbursed by the payment of any Additional Amount and not excluded from the requirement to pay Additional Amounts, as described above. The Company or any successor to the Company, as the case may be, shall also (i) make such withholding or deduction to the extent required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishor any successor to the Company, as the case may be, shall furnish the Trustee within 60 30 days after the date the payment of any such Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to evidencing the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available successor to the Holders upon requestCompany, as the case may be, or other evidence of such payment reasonably satisfactory to the Trustee. It is understood, however, that the Trustee is under no obligation to request such certified copies of tax receipts evidencing the payment. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Securities is due and payable, if the Company or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)those payments, the Company will shall deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and stating the amount so amounts that will be payable and will set setting forth such any other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes Securities on the payment date. Whenever in this Indenture or any Security there is mentioned, in any context, (a) the payment of principal (and the principal, premium, if any), (b) purchase prices or interest, or sinking fund or analogous payment, if any, in connection with a purchase respect of the Notes, (c) such Security or overdue principal or overdue interest or (d) any other amount payable on overdue sinking fund or with respect to any of the Notes or the Subsidiary Guaranteesanalogous payment, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section herein to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as thereof pursuant to the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic provisions of France or this Section and express mention thereof in any jurisdiction provisions hereof shall not be construed as excluding Additional Amounts in which a Paying Agent those provisions hereof where such express mention is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto not made (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveif applicable). The obligations of the Company or (and any Guarantor described in successor entity to the Company pursuant to Section 8.1) under this Section 4.19 will 10.5 shall survive any termination, defeasance or satisfaction and discharge the termination of this Indenture and the payment of all amounts under or with respect to the Securities.
(b) Each Holder of a Security, by acceptance of such Security, agrees that, with reasonable promptness after receiving written notice from the Company to the effect that such Xxxxxx is eligible for a refund in respect of Taxes actually paid by the Company pursuant to this Section 10.5, such Holder will sign and deliver, as reasonably directed by the Company, any transfer form provided to such Holder by the Company to enable such Holder to obtain a refund in respect of such Taxes; and if such Holder thereafter receives such refund in respect of such Taxes, such Holder will promptly pay such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority). If a Holder applies for a refund of such Taxes prior to a request by the Company to apply for such a refund, the Holder will, upon receipt of a request by the Company to apply for, or to turn over the proceeds of, any such refund, pay any such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority), promptly upon receipt of such refund. The Company shall pay all reasonable out-of-pocket expenses incurred by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction Holder in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which connection with obtaining such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinrefund.
Appears in 3 contracts
Samples: Indenture (Carnival PLC), Indenture (Carnival PLC), Indenture (Carnival PLC)
Additional Amounts. All payments made (a) The Company hereby agrees that any amounts to be paid by or on behalf of the Company or any Guarantor under or with respect to the Notes each Security shall be paid without deduction or the Subsidiary Guarantees will be made free withholding for any and clear of all present and without withholding or deduction for or on account of any present or future taxtaxes, dutylevies, levy, impost, assessment imposts or other governmental charge (including without limitationcharges whatsoever imposed, penaltiesassessed, interest and any other liability with respect thereto) (“Taxes”) imposed levied or levied collected by or on behalf for the account of any jurisdiction in which (i)(x) the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes Republic of Panama or any political subdivision or taxing authority thereof or therein (y) the jurisdiction of incorporation (other than the United States or any political subdivision or taxing authority thereof) of a successor entity to the Company pursuant to Section 8.1, to the extent that such taxes, levies, imposts or other governmental charges first become applicable as a result of such successor entity becoming the obligor on the Securities, or (ii) any other jurisdiction by (other than the United States or any political subdivision or taxing authority thereof) from or through which payment any amount is made paid by the Company hereunder or where it is resident or maintains a place of business or permanent establishment (each, each jurisdiction described in Clauses (i) and (ii) above is referred to herein as a “Relevant Taxing Jurisdiction” and such taxes, levies, imposts or other governmental charges are referred to as “Taxes”), unless the Company withholding or any Guarantor (or any Paying Agent) deduction of such Tax is required to withhold or deduct Taxes under the compelled by laws of the Relevant Republic of Panama or any other applicable Taxing Jurisdiction Jurisdiction. If any deduction or withholding of any Taxes (other than Excluded Taxes, as defined below) is ever required by the interpretation or administration thereof by the relevant taxing authority. If the Company Republic of Panama or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant other Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesJurisdiction, the Company shall (subject to compliance by the Holder or beneficial owner of each Security with any such Guarantor will applicable administrative requirements) pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that required to make the net amount received by amounts paid to each Holder of such Holder (including Security or the Additional Amounts) Trustee pursuant to the terms of this Indenture or the Securities, after such withholding deduction or deduction will not be less than withholding, equal to the amount amounts of principal, premium, if any, interest, if any, and sinking fund or analogous payments, if any, to which 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 any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment Trustee is entitled. However, the Company shall not be required to pay Additional Amounts in respect of principal more than 30 days after the later of following Taxes (“Excluded Taxes”):
(1) the date on which such payment first became due and (2) if the full amount payable has not been received by any present or on behalf future Taxes imposed, assessed, levied or collected as a result of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of a Security (i) being organized under the laws of, or otherwise being or having been a domiciliary, national or resident of, (ii) being engaged or having been engaged in a trade or business in, (iii) having or having had its principal office located in, (iv) maintaining or having maintained a permanent establishment in, (v) being or having been physically present in, or (vi) otherwise having or having had some connection (other than the connection arising from holding or owning such Security, or collecting principal and interest, if any, on, or the enforcement of, such Security) with the Republic of Panama or any other applicable Taxing Jurisdiction;
(2) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, the relevant Security was presented more than thirty days after the date the payment became due or was provided for, whichever is later;
(3) any present or future Taxes imposed under Sections 1471-1474 of the United States Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder, or any present or future Taxes imposed under comparable provisions of non-United States tax law;
(4) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the failure to provide informationmake any certification, documents identification or other evidence report concerning the nationality, residence, identity or connection with the Relevant Republic of Panama or any other applicable Taxing Jurisdiction of such the Holder or beneficial owner which is required of such Security or imposed by claim for relief or exemption, if making such a statutecertification, treatyidentification, regulation other report or administrative practice claim is, under the laws, rules or regulations of the Relevant Taxing Jurisdiction as any such jurisdiction, a precondition condition to relief or exemption from all or part of such tax, assessment or governmental chargeTaxes;
(c5) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment Tax or other governmental charge;duty; or
(e6) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of Clauses (a1), (b2), (c3), (d4) or and (e5) or with respect to any payment made by or on behalf of the Company or any Guarantor above; provided further, that no such Additional Amounts shall be payable in respect of any Note or Subsidiary Guarantee to Security held by (x) any Holder who or beneficial owner that is a fiduciary or partnership or other than not the sole beneficial owner of such payment Security, or that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, but only to the extent that a beneficiary or settlor with respect to the fiduciary or a beneficial owner owner, partner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to any such Additional Amounts had such beneficiary the beneficiary, settlor, beneficial owner, partner or settlor or beneficial owner member been the Holder;
(g) direct holder of such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inSecurity, or (y) paid or accrued to any Holder that is not a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A resident of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect United States to the Notes;
(j) when extent that, had such withholding or deduction is required to be made by reason Holder been a resident of the Holder United States and eligible (taking into account any applicable limitation on benefits article or similar provision) for the beneficial owner of the Note concurrently being a shareholder of the Company or benefit of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement double taxation treaty between the United States and another jurisdiction facilitating the implementation thereof applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security, such Holder would not have been entitled to such Additional Amounts, or (z) any Holder that is a resident of the United States but that is not eligible for the benefit of any double taxation treaty between the United States and the applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security (but only to the extent the amount of such deduction or any fiscal or regulatory legislation, rules or practices implementing withholding exceeds that which would have been required had such an intergovernmental agreement) (any such withholding or deduction, Holder of a “FATCA Withholding”Security been so eligible and made all relevant claims). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will successor to the Company, as the case may be, agrees to indemnify and hold harmless each Holder of a Security and upon written request reimburse each Holder for the amount of (i) any Taxes levied or imposed and paid by such Holder of a Security (other than Excluded Taxes) as a result of payments made with respect to such Security, (ii) any liability (including penalties, interest and expenses) arising therefrom with respect thereto, and (iii) any Taxes (other than Excluded Taxes) with respect to payment of Additional Amounts or any reimbursement pursuant to this sentence, in each case, to the extent not otherwise reimbursed by the payment of any Additional Amount and not excluded from the requirement to pay Additional Amounts, as described above. The Company or any successor to the Company, as the case may be, shall also (i) make such withholding or deduction to the extent required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishor any successor to the Company, as the case may be, shall furnish the Trustee within 60 30 days after the date the payment of any such Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to evidencing the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available successor to the Holders upon requestCompany, as the case may be, or other evidence of such payment reasonably satisfactory to the Trustee. It is understood, however, that the Trustee is under no obligation to request such certified copies of tax receipts evidencing the payment. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Securities is due and payable, if the Company or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)those payments, the Company will shall deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and stating the amount so amounts that will be payable and will set setting forth such any other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes Securities on the payment date. Whenever in this Indenture or any Security there is mentioned, in any context, (a) the payment of principal (and the principal, premium, if any), (b) purchase prices or interest, or sinking fund or analogous payment, if any, in connection with a purchase respect of the Notes, (c) such Security or overdue principal or overdue interest or (d) any other amount payable on overdue sinking fund or with respect to any of the Notes or the Subsidiary Guaranteesanalogous payment, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section herein to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as thereof pursuant to the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic provisions of France or this Section and express mention thereof in any jurisdiction provisions hereof shall not be construed as excluding Additional Amounts in which a Paying Agent those provisions hereof where such express mention is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto not made (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveif applicable). The obligations of the Company or (and any Guarantor described in successor entity to the Company pursuant to Section 8.1) under this Section 4.19 will 10.5 shall survive any termination, defeasance or satisfaction and discharge the termination of this Indenture and the payment of all amounts under or with respect to the Securities.
(b) Each Holder of a Security, by acceptance of such Security, agrees that, with reasonable promptness after receiving written notice from the Company to the effect that such Xxxxxx is eligible for a refund in respect of Taxes actually paid by the Company pursuant to this Section 10.5, such Holder will sign and deliver, as reasonably directed by the Company, any transfer form provided to such Holder by the Company to enable such Holder to obtain a refund in respect of such Taxes; and if such Holder thereafter receives such refund in respect of such Taxes, such Holder will promptly pay such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority). If a Holder applies for a refund of such Taxes prior to a request by the Company to apply for such a refund, the Holder will, upon receipt of a request by the Company to apply for, or to turn over the proceeds of, any such refund, pay any such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority), promptly upon receipt of such refund. The Company shall pay all reasonable out-of-pocket expenses incurred by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction Holder in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which connection with obtaining such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinrefund.
Appears in 3 contracts
Samples: Indenture (Carnival PLC), Indenture (Carnival PLC), Indenture (Carnival PLC)
Additional Amounts. All payments made (a) The Company hereby agrees that any amounts to be paid by or on behalf of the Company or any Guarantor under or with respect to the Notes each Security shall be paid without deduction or the Subsidiary Guarantees will be made free withholding for any and clear of all present and without withholding or deduction for or on account of any present or future taxtaxes, dutylevies, levy, impost, assessment imposts or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) charges (“Taxes”) imposed whatsoever imposed, assessed, levied or levied collected by or on behalf for the account of any jurisdiction in which (i)(x) the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes Republic of Panama or any political subdivision or taxing authority thereof or therein (y) the jurisdiction of incorporation (other than the United States, the United Kingdom, or any political subdivision or taxing authority thereof) of a successor corporation to the Company pursuant to Section 8.1, to the extent that such Taxes first become applicable as a result of the successor corporation becoming the obligor on the Securities, or (ii) any jurisdiction by (other than the United States, the United Kingdom or any political subdivision or taxing authority thereof) from or through which payment any amount is made paid by the Company hereunder or where it is resident or maintains a place of business or permanent establishment (each, each jurisdiction described in clauses (i) and (ii) above is referred to herein as a “Relevant Taxing Jurisdiction”), unless the Company withholding or any Guarantor (or any Paying Agent) deduction of such Tax is required to withhold or deduct Taxes under the compelled by laws of the Relevant Republic of Panama or any other applicable Taxing Jurisdiction Jurisdiction. If any deduction or withholding of any Taxes (other than Excluded Taxes, as defined below) is ever required by the interpretation or administration thereof by the relevant taxing authority. If the Company Republic of Panama or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant other Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesJurisdiction, the Company shall (subject to compliance by the Holder or beneficial owner of any such Guarantor will Security with any relevant administrative requirements) pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that required to make the net amount received by amounts paid to the Holder of such Security or the Trustee under this Indenture, as the case may be, after such deduction or withholding, equal to the amounts of principal, premium, if any, interest, if any, and sinking fund or analogous payments, if any, to which such Holder (including or the Additional Amounts) after such withholding or deduction will Trustee is entitled. However, the Company shall not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted, provided that no required to pay Additional Amounts will be payable with in respect to any Note:of the following Taxes (“Excluded Taxes”):
(a1) surrendered by any present or future Taxes imposed, assessed, levied or collected as a result of the Holder or the beneficial owner thereof of a Security (i) being organized under the laws of, or otherwise being or having been a domiciliary, national or resident of, (ii) being engaged or having been engaged in a trade or business in, (iii) having or having had its principal office located in, (iv) maintaining or having maintained a permanent establishment in, (v) being or having been physically present in, or (vi) otherwise having or having had some connection (other than the connection arising from holding or owning such Security, or collecting principal and interest, if any, on, or the enforcement of, such Security) with the Republic of Panama or any other applicable Taxing Jurisdiction;
(2) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for payment of principal the fact that, where presentation is required, such Security was presented more than 30 thirty days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due datewas provided for, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day periodwhichever is later;
(b3) if any taxpresent or future Taxes which would not have been so imposed, assessment assessed, levied or other governmental charge is imposed or withheld by reason of collected but for the failure to comply by the Holder orwith any certification, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents identification or other evidence reporting requirements concerning the nationality, residence, identity or connection with the Relevant Republic of Panama or any other applicable Taxing Jurisdiction of such the Holder or beneficial owner which of such Security, if compliance is required by statute or imposed by a statute, treaty, regulation rules or administrative practice regulations of the Relevant Taxing Jurisdiction any such jurisdiction as a precondition condition to relief or exemption from all or part of such tax, assessment or governmental chargeTaxes;
(c4) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment Tax or other governmental charge;duty; or
(e5) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of clauses (a1), (b2), (c)3) and (4) above; provided further, (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor that no such Additional Amounts shall be payable in respect of any Note or Subsidiary Guarantee to Security held by (x) any Holder who or beneficial owner that is a fiduciary or partnership or other than not the sole beneficial owner of such payment Security, or that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, but only to the extent that a beneficiary or settlor with respect to the fiduciary or a beneficial owner owner, partner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to any such Additional Amounts had such beneficiary the beneficiary, settlor, beneficial owner, partner or settlor or beneficial owner member been the Holder;
(g) direct holder of such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inSecurity, or (y) paid or accrued to any Holder that is not a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A resident of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding United States or deduction from a payment made under or with respect the United Kingdom to the Notes;
(j) when extent that, had such withholding or deduction is required to be made by reason Holder been a resident of the Holder United States or the beneficial owner of United Kingdom and eligible for the Note concurrently being a shareholder of the Company or benefit of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement double taxation treaty between the United States or the United Kingdom, as applicable, and another jurisdiction facilitating the implementation thereof applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security, such Holder would not have been entitled to such Additional Amounts, or (z) any Holder that is a resident of the United States or the United Kingdom but that is not eligible for the benefit of any fiscal double taxation treaty between the United States or regulatory legislationthe United Kingdom, rules as applicable, and the applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security (but only to the extent the amount of such deduction or practices implementing withholding exceeds that which would have been required had such an intergovernmental agreement) (any such withholding or deduction, Holder of a “FATCA Withholding”Security been so eligible and made all relevant claims). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will successor to the Company, as the case may be, shall indemnify and hold harmless each Holder of a Security and upon written request reimburse each Holder for the amount of (i) any Taxes levied or imposed by the Republic of Panama or any other applicable Taxing Jurisdiction and paid by such Holder of any Security (other than Excluded Taxes) as a result of payments made with respect to any Security, (ii) any liability (including penalties, interest and expenses) arising from or in connection with the levying or imposing of any Taxes (other than Excluded Taxes) by the Republic of Panama or any other applicable Taxing Jurisdiction with respect to any Security, and (iii) any Taxes (other than Excluded Taxes) levied or imposed by the Republic of Panama or any other applicable Taxing Jurisdiction with respect to payment of Additional Amounts or any reimbursement pursuant to this sentence. The Company or any successor to the Company, as the case may be, shall also (i) make such withholding or deduction to the extent required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishor any successor to the Company, as the case may be, shall furnish the Trustee within 60 30 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available successor to the Holders upon requestCompany, as the case may be, or other evidence of such payment reasonably satisfactory to the Trustee. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Securities is due and payable, if the Company or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)payments, the Company will deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and stating the amount amounts so payable and will set setting forth such other information as may be necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes Securities on the payment date. Whenever in this Indenture or any Security there is mentioned, in any context, (a) the payment of principal (and the principal, premium, if any), (b) purchase prices or interest, or sinking fund or analogous payment, if any, in connection with a purchase respect of the Notes, (c) such Security or overdue principal or overdue interest or (d) any other amount payable on overdue sinking fund or with respect to any of the Notes or the Subsidiary Guaranteesanalogous payment, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section herein to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as thereof pursuant to the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic provisions of France or this Section and express mention thereof in any jurisdiction provisions hereof shall not be construed as excluding Additional Amounts in which a Paying Agent those provisions hereof where such express mention is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto not made (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveif applicable). The obligations of the Company or (and any Guarantor described in successor corporation to the Company pursuant to Section 8.1) under this Section 4.19 will 10.5 shall survive any termination, defeasance or satisfaction and discharge the termination of this Indenture and the payment of all amounts under or with respect to the Securities.
(b) Each Holder of a Security, by acceptance of such Security, agrees that, with reasonable promptness after receiving written notice from the Company to the effect that such Xxxxxx is eligible for a refund in respect of Taxes actually paid by the Company pursuant to this Section 10.5, such Holder will sign and deliver, as reasonably directed by the Company, any transfer form provided to such Holder by the Company to enable such Holder to obtain a refund in respect of such Taxes; and if such Holder thereafter receives such refund in respect of such Taxes, such Holder will promptly pay such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority). If a Holder applies for a refund of such Taxes prior to a request by the Company to apply for such a refund, the Holder will, upon receipt of a request by the Company to apply for, or to turn over the proceeds of, any such refund, pay any such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority), promptly upon receipt of such refund. The Company shall pay all reasonable out-of-pocket expenses incurred by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction Holder in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which connection with obtaining such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinrefund.
Appears in 3 contracts
Samples: Indenture (Carnival PLC), Indenture (Carnival PLC), Indenture (Carnival PLC)
Additional Amounts. All payments made by (a) At least 10 days prior to the first date on which payment of principal, premium, if any, or interest on behalf of the Company Notes or the Guarantees is to be made, and at least 10 days prior to any Guarantor under or subsequent such date if there has been any change with respect to the matters set forth in the Officers’ Certificate described in this Section 4.20, the Issuer will furnish the Trustee and the Principal Paying Agent, if other than the Trustee, with an Officers’ Certificate instructing the Trustee and the Principal Paying Agent whether such payment of principal, premium, if any, or interest on the Notes (whether or not in the Subsidiary Guarantees will form of Definitive Notes) or any Guarantee shall be made free and clear of and to the Holders without withholding or deduction for for, or on account of of, any present or future taxtaxes, dutyduties, levyassessments or governmental charges of whatever nature (collectively, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of (i) any jurisdiction in which the Company Payor or any Guarantor (including any or successor entities) Guarantor is then organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (ii) any jurisdiction by from or through which payment on the Notes or any of the Guarantees is made made, or any political subdivision or governmental authority thereof or therein having the power to tax (eacheach of clause (i) and (ii), a “Relevant Taxing Jurisdiction”), unless the Company withholding or deduction of Taxes is then required by law.
(b) If any Guarantor (deduction or withholding for, or on account of, any Paying Agent) is required to withhold or deduct Taxes under the laws of the any Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or will at any Guarantor (or any Paying Agent) is so time be required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment payments made under or with respect to the Notes or the Subsidiary Guarantees, including payments of principal, Redemption Price, interest or premium, if any, the Company Payor or any such Guarantor the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts pursuant to each Holder Paragraph 2 of the Notes that are outstanding on (the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such 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 any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;).
(c) held by The Payor and each Guarantor or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any successor Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
will (i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is make any required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority Relevant Taxing Jurisdiction in accordance with applicable law. The Company Upon written request, the Payor and each Guarantor will furnish, within 60 days after the date use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes is due pursuant so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to applicable law, each Holder. The Payor and each Guarantor or successor Guarantor will attach to each certified copy a certificate stating (x) that the Trustee, copies amount of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made withholding Taxes evidenced by the Company or any Guarantorcertified copy was paid in connection with payments in respect of the principal amount of Notes then outstanding and (y) the amount of such withholding Taxes paid per €1,000 principal amount of the Notes. The Trustee will make Copies of such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it documentation will be paid promptly thereafter and in any case before available for inspection during ordinary business hours at the relevant payment date), office of the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to Trustee by the Holders of the Notes on the payment date. Whenever upon request.
(d) Wherever in this Indenture or the Notes there is are mentioned, in any context, (ai) the payment of principal (and premium, if any)principal, (bii) purchase prices in connection with a purchase of the Notes, (ciii) interest or (div) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is reference shall be deemed to include mention of the payment of Additional Amounts provided for as described in this section Indenture and the Notes to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(e) The Company Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or a Guarantorexpense incurred without gross negligence, as the case may be, will pay any present willful default or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic bad faith on their part arising out of France or in connection with actions taken or omitted by any jurisdiction of them in which a Paying Agent is located from the initial issue or registration of the Notes or reliance on the enforcement of any payments with respect Officers’ Certificate furnished to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable them pursuant to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 4.20.
(f) Obligations under this Section 4.20 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinIndenture.
Appears in 2 contracts
Samples: Indenture (Smurfit WestRock PLC), Indenture (Smurfit WestRock PLC)
Additional Amounts. (a) All payments made by or on behalf of the Company Issuer or any Guarantor of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or the Subsidiary Guarantees will any Note Guarantee shall be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxTaxes unless the withholding or deduction of such Taxes is then required by law. If the Issuer, duty, levy, impost, assessment any Guarantor or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction in which the Company Issuer or any Guarantor (including any successor entities) is then or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction by from or through which any payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a Relevant Taxing Jurisdiction from “Tax Jurisdiction”) in respect of any payment made payments under or with respect to the Notes or the Subsidiary Guaranteesany Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Company Issuer or any such Guarantor will the relevant Guarantor, as applicable, shall pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by such each Holder (including the Additional Amounts) after such withholding or deduction will not be less than equal the amount such Holder respective amounts that would have been received if by each Holder in respect of such Taxes had not been withheld payments in the absence of such withholding or deducteddeduction; provided, provided however, that no Additional Amounts will shall be payable with respect to any Noteto:
(ai) surrendered by any Taxes, to the Holder extent such Taxes would not have been imposed but for the holder or the beneficial owner thereof for payment of principal more than 30 days after the later Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of a power over, the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder orowner, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such relevant Holder or beneficial owner to provide informationis an estate, documents trust, nominee, partnership, limited liability company or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(ccorporation) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being national of, or having been present or incorporated, engaged in a trade or business therein in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, this Indenture or a permanent establishment thereinNote Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(dii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on account the last day of such 30 day period);
(iii) any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental chargeTaxes;
(eiv) except in any Taxes payable other than by deduction or withholding from payments under, or with respect to, the case of the winding up of the Company Notes or any Guarantor, any Note surrendered for payment in the Republic of FranceGuarantee;
(fv) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the Holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the Holder at least 30 days before any such withholding or deduction would be imposed, 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 result precondition to exemption from, or reduction in the rate of any combination of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (aincluding, 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;
(b)vi) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a Holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(c), (dvii) or (e) any Taxes imposed on or with respect to any payment made by the Issuer or on behalf any of the Company or any Guarantor in respect Guarantors to the Holder of any Note or Subsidiary Guarantee to any the Notes if such 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 or beneficial owner such Taxes would not have been entitled to any Additional Amounts imposed on such payments had such beneficiary or settlor or Holder been the sole beneficial owner been the Holderof such Note;
(gviii) such withholding any Taxes imposed by the United States, any state thereof or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law District of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inColumbia, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State any subdivision thereof or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of thereof, including any U.S. federal withholding taxes and any Taxes which that are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to current Sections 1471 through 1474 of the Code or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any regulations thereunder related law or official interpretations thereofadministrative practices or procedures) implementing the foregoing or an intergovernmental agreement between any agreements entered into pursuant to current Section 1471(b)(1) of the United States and another jurisdiction facilitating the implementation thereof Code (or any fiscal amended or regulatory legislationsuccessor version described above); or
(ix) any combination of clauses (i) through (viii) above. In addition to the foregoing, rules the Issuer and the Guarantors will also pay and indemnify the holder for any present or practices implementing such an intergovernmental agreementfuture stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note Guarantee or any other document referred to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Notes or any Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments or that are imposed on or result from a sale or other transfer or disposition of a Note by a Holder or a beneficial owner, to any such withholding Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (i) through (iii) or deduction(v) through (ix) above or any combination thereof), save in each case for any such taxes, charges or levies which arise or are increased as a “FATCA Withholding”). Neither result of any document effecting the Company nor registration, issue or delivery of any other person, including of the notes either being signed or executed in the United Kingdom or being brought into the United Kingdom.
(b) If the Issuer or any Guarantor, as the case may be, becomes aware that it will be required obligated to pay any Additional Amounts with respect to any payment under or with respect to the Notes or any Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 respect of FATCA Withholdingwhich case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Company Officer’s Certificates must also set forth any other information reasonably necessary to enable the Paying Agents to pay Additional Amounts to Holders on the relevant payment date. The Issuer or any the relevant Guarantor will also provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, shall make such withholding or deduction all withholdings and deductions (within the time period) required by law and shall remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Company will furnishIssuer or the relevant Guarantor shall 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 shall furnish to the Trustee (or to a Holder of the Notes upon request), within 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant 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 applicable lawobtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee, copies of tax receipts ) by such entity.
(to the extent received from the relevant tax authorities in the usual course or as generally providedd) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture or the Notes there is mentioned, in any context, (a) the payment of amounts based upon the principal (and premium, if any), (b) purchase prices in connection with a purchase amount of the NotesNotes or of principal, (c) interest or (d) of any other amount payable on under, or with respect to to, any of the Notes or the Subsidiary Guaranteesany Note Guarantee, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto .
(limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (ae) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will This Section 4.12 shall survive any termination, defeasance or satisfaction and discharge of this Indenture or Indenture, any transfer by a holder Holder or beneficial owner of its notesNotes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (or any Guarantor Guarantor) is incorporated, engaged in business for tax purposes business, organized or resident for tax purposes purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person makes any payment on the Notes and any department or and, in each case, any political subdivision thereof or therein.
Appears in 2 contracts
Samples: Indenture (Norwegian Cruise Line Holdings Ltd.), Indenture (Norwegian Cruise Line Holdings Ltd.)
Additional Amounts. (a) All payments made by or on behalf of the Company Issuer or any Guarantor of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or the Subsidiary Guarantees will any Note Guarantee shall be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxTaxes unless the withholding or deduction of such Taxes is then required by law. If the Issuer, duty, levy, impost, assessment any Guarantor or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction in which the Company Issuer or any Guarantor (including any successor entities) is then or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction by from or through which any payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a Relevant Taxing Jurisdiction from “Tax Jurisdiction”) in respect of any payment made payments under or with respect to the Notes or the Subsidiary Guaranteesany Note Guarantee, including, without limitation, payments of principal, Redemption Price, purchase price, interest or premium, the Company Issuer or any such Guarantor will the relevant Guarantor, as applicable, shall pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by such each Holder (including the Additional Amounts) after such withholding or deduction will not be less than equal the amount such Holder respective amounts that would have been received if by each Holder in respect of such Taxes had not been withheld payments in the absence of such withholding or deducteddeduction; provided, provided however, that no Additional Amounts will shall be payable with respect to any Noteto:
(ai) surrendered by any Taxes, to the Holder extent such Taxes would not have been imposed but for the holder or the beneficial owner thereof for payment of principal more than 30 days after the later Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of a power over, the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder orowner, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such relevant Holder or beneficial owner to provide informationis an estate, documents trust, nominee, partnership, limited liability company or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(ccorporation) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being national of, or having been present or incorporated, engaged in a trade or business therein in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had a permanent establishment thereinany other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, such Note Guarantee or this Indenture, or the receipt of payments in respect of such Note or Note Guarantee;
(dii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on account the last day of such 30 day period);
(iii) any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental chargeTaxes;
(eiv) except in any Taxes payable other than by deduction or withholding from payments under, or with respect to, the case of the winding up of the Company Notes or any Guarantor, any Note surrendered for payment in the Republic of FranceGuarantee;
(fv) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the Holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the Holder at least 30 days before any such withholding or deduction would be imposed, 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 result precondition to exemption from, or reduction in the rate of any combination of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (aincluding, 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;
(b)vi) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a Holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(c), (dvii) or (e) any Taxes imposed on or with respect to any payment made by the Issuer or on behalf any of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee Guarantors to any the Holder who if such Holder 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 or beneficial owner such Taxes would not have been entitled to any Additional Amounts imposed on such payments had such beneficiary or settlor or Holder been the sole beneficial owner been the Holderof such Note;
(gviii) such withholding any Taxes imposed by the United States, any state thereof or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law District of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inColumbia, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State any subdivision thereof or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of thereof, including any U.S. federal withholding taxes and any Taxes which that are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to current Sections 1471 through 1474 of the Code or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any regulations thereunder related law or official interpretations thereofadministrative practices or procedures) implementing the foregoing or an intergovernmental agreement between any agreements entered into pursuant to current Section 1471(b)(1) of the United States and another jurisdiction facilitating the implementation thereof Code (or any fiscal amended or regulatory legislationsuccessor version described above); or
(ix) any combination of clauses (i) through (viii) above. In addition to the foregoing, rules the Issuer and the Guarantors will also pay and indemnify the holder for any present or practices implementing such an intergovernmental agreementfuture stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, this Indenture, any Note Guarantee or any other document referred to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Notes or any Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments or that are imposed on or result from a sale or other transfer or disposition of a Note by a Holder or a beneficial owner, to any such withholding Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (i) through (iii) or deduction(v) through (ix) above or any combination thereof), save in each case for any such taxes, charges or levies which arise or are increased as a “FATCA Withholding”). Neither result of any document effecting the Company nor registration, issue or delivery of any other person, including of the notes either being signed or executed in the United Kingdom or being brought into the United Kingdom.
(b) If the Issuer or any Guarantor, as the case may be, becomes aware that it will be required obligated to pay any Additional Amounts with respect to any payment under or with respect to the Notes or any Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 respect of FATCA Withholdingwhich case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Company Officer’s Certificates must also set forth any other information reasonably necessary to enable the Paying Agents to pay Additional Amounts to Holders on the relevant payment date. The Issuer or any the relevant Guarantor will also provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, shall make such withholding or deduction all withholdings and deductions (within the time period) required by law and shall remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Company will furnishIssuer or the relevant Guarantor shall 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 shall furnish to the Trustee (or to a Holder upon request), within 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant 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 applicable lawobtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee, copies of tax receipts ) by such entity.
(to the extent received from the relevant tax authorities in the usual course or as generally providedd) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture or the Notes there is mentioned, in any context, (a) the payment of amounts based upon the principal (and premium, if any), (b) purchase prices in connection with a purchase amount of the NotesNotes or of principal, (c) interest or (d) of any other amount payable on under, or with respect to to, any of the Notes or the Subsidiary Guaranteesany Note Guarantee, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto .
(limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (ae) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will This Section 4.12 shall survive any termination, defeasance or satisfaction and discharge of this Indenture or Indenture, any transfer by a holder Holder or beneficial owner of its notesNotes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (or any Guarantor Guarantor) is incorporated, engaged in business for tax purposes business, organized or resident for tax purposes purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person makes any payment on the Notes and any department or and, in each case, any political subdivision thereof or therein.
Appears in 2 contracts
Samples: Indenture (Norwegian Cruise Line Holdings Ltd.), Indenture (Norwegian Cruise Line Holdings Ltd.)
Additional Amounts. All payments made (a) The Company hereby agrees that any amounts to be paid by or on behalf of the Company or any Guarantor under or with respect to the Notes each Security shall be paid without deduction or the Subsidiary Guarantees will be made free withholding for any and clear of all present and without withholding or deduction for or on account of any present or future taxtaxes, dutylevies, levy, impost, assessment imposts or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) charges (“Taxes”) imposed whatsoever imposed, assessed, levied or levied collected by or on behalf for the account of any the Republic of Panama (or the jurisdiction in which of incorporation (other than the United States or the United Kingdom) of a successor corporation to the Company or any Guarantor (including any pursuant to Section 8.1, to the extent that such taxes first become applicable as a result of the successor entitiescorporation becoming the obligor on the Securities) is then organized or resident for tax purposes or any political subdivision or taxing authority thereof or therein or (ii) any jurisdiction by jurisdiction, other than the United States or the United Kingdom (or any political subdivision of or taxing authority of or in the United States or the United Kingdom), from or through which payment any amount is made paid by the Company hereunder or where it is resident or maintains a place of business or permanent establishment (each, each jurisdiction described in clauses (i) and (ii) above is referred to herein as a “Relevant Taxing Jurisdiction”), unless the Company withholding or any Guarantor (or any Paying Agent) deduction of such Tax is required to withhold or deduct Taxes under the compelled by laws of the Relevant Republic of Panama or any other Taxing Jurisdiction Jurisdiction. If any deduction or withholding of any Taxes shall at any time be required by the interpretation or administration thereof by the relevant taxing authority. If the Company Republic of Panama or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant other Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesJurisdiction, the Company shall (subject to compliance by the Holder or any such Guarantor will pay to each Holder beneficial owner of the Notes that are outstanding on the date of the required payment, Security with any relevant administrative requirements) pay such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) in respect of principal, premium, if any, interest, if any, and sinking fund or analogous payments, if any, as may be necessary so in order that the net amount received by paid to the Holder of such Holder (including Security or the Additional Amounts) Trustee under this Indenture, as the case may be, after such withholding deduction or deduction will not be less than withholding, shall equal the amount respective amounts of principal, premium, if any, interest, if any, and sinking fund or analogous payments, if any, as specified in the Security to which 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 any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after Trustee is entitled; provided, however, that the later of foregoing shall not apply to (1i) the date on any present or future Taxes which such payment first became due and (2) if the full amount payable has would not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having have been so receivedimposed, notice to that effect shall have been given to assessed, levied or collected but for the Holders except to the extent fact that the Holder or the beneficial owner of such Security being or having been a domiciliary, national or resident of, or engaging or having been engaged in business, or maintaining or having maintained a permanent establishment, or being or having been physically present in, or otherwise having or having had some connection with, the Republic of Panama or any other applicable Taxing Jurisdiction other than the holding or ownership of a Security, or the collection of principal of and interest, if any, on, or the enforcement of, a Security, (ii) any present or future Taxes which would not have been entitled to so imposed, assessed, levied or collected but for the fact that, where presentation is required, such Additional Amounts on surrendering Security was presented more than thirty days after the date such Note payment became due or was provided for, whichever is later, (iii) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder orwith any certification, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents identification or other evidence reporting requirements concerning the nationality, residence, identity or connection with the Relevant Republic of Panama or any other applicable Taxing Jurisdiction of such the Holder or beneficial owner which of such Security, if compliance is required by statute or imposed by a statute, treaty, regulation rules or administrative practice regulations of the Relevant Republic of Panama or any other applicable Taxing Jurisdiction as a precondition condition to relief or exemption from all or part of such taxTaxes, assessment or governmental charge;
(civ) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar taxtax or duty, assessment or other governmental charge;
(ev) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of clauses (ai), (bii), (c)iii) and (iv) above; provided further, (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor however, that no such Additional Amounts shall be payable in respect of any Note or Subsidiary Guarantee to Security held by (x) any Holder who is a fiduciary or a partnership or a beneficial owner who is other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to any such Additional Amounts had such beneficiary or settlor or beneficial owner it been the Holder;
Holder of such Security, (gy) such withholding any Holder who is not a resident of the United States or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant the United Kingdom to the Luxembourg law extent that, had such Holder been a resident of 23 December 2005;
(h) when the United States or the United Kingdom such withholding or deduction is required Holder would not have been entitled to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established insuch Additional Amounts, or (yz) paid any Holder who is resident for tax purposes in the United States or accrued the United Kingdom or such other jurisdiction but who is not eligible for the benefit of any double taxation treaty between the United States or the United Kingdom or such other jurisdiction and any jurisdiction other than the United States or the United Kingdom in relation to payments of amounts due under this Indenture and the Securities (but only to the extent the amount of such deduction or withholding exceeds that which would have been required had such Holder of a person established Security been so eligible and make all relevant claims). Taxes payable or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) described as defined being payable in Article 238-0 A the provisions of the French Code général des impôts;
clauses (i) in through (v) above are referred to herein as “Excluded Taxes.” The Company or any successor to the Company, as the case may be, shall indemnify and hold harmless each Holder of the Securities and upon written request reimburse each Holder for the amount of (i) any Taxes which are payable otherwise levied or imposed by the Republic of Panama or any other applicable Taxing Jurisdiction and paid by such Holder of the Securities (other than by withholding or deduction from Excluded Taxes) as a payment result of payments made under or with respect to the Notes;
Securities, (jii) when such withholding any liability (including penalties, interest and expenses) arising therefrom or deduction is required with respect thereto, and (iii) any Taxes with respect to be made by reason payment of the Holder Additional Amounts or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required reimbursement pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholdingthis sentence. The Company or any Guarantor will successor to the Company, as the case may be, shall also (1) make such withholding or deduction and (2) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishor any successor to the Company, as the case may be, shall furnish the Trustee within 60 30 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The successor to the Company, as the case may be, which the Trustee will make such evidence available shall forward to the Holders upon requestof the Securities. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Securities is due and payable, if the Company or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)payments, the Company will deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and stating the amount amounts so payable and will set setting forth such other information as may be necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes Securities on the payment date. Whenever in this Indenture or any Security there is mentioned, in any context, (a) the payment of principal (and the principal, premium, if any), (b) purchase prices or interest, or sinking fund or analogous payment, if any, in connection with a purchase respect of the Notes, (c) such Security or overdue principal or overdue interest or (d) any other amount payable on overdue sinking fund or with respect to any of the Notes or the Subsidiary Guaranteesanalogous payment, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section herein to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as thereof pursuant to the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic provisions of France or this Section and express mention thereof in any jurisdiction provisions hereof shall not be construed as excluding Additional Amounts in which a Paying Agent those provisions hereof where such express mention is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto not made (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveif applicable). The obligations of the Company or (and any Guarantor described in successor corporation to the Company pursuant to Section 8.1) under this Section 4.19 will 10.5 shall survive any termination, defeasance or satisfaction and discharge the termination of this Indenture and the payment of all amounts under or with respect to the Securities.
(b) Each Holder of a Security, by acceptance of such Security, agrees that, with reasonable promptness after receiving written notice from the Company to the effect that such Xxxxxx is eligible for a refund in respect of Taxes actually paid by the Company pursuant to this Section 10.5, such Holder will sign and deliver to, as reasonably directed by the Company, any transfer form provided to such Holder by the Company to enable such Holder to obtain a refund in respect of such Taxes; and if such Holder thereafter receives such refund in respect of such Taxes, such Holder will promptly pay such refund to the Company, as applicable (together with interest, if any, received by such Holder from the relevant taxing authority). If a Holder applies for a refund of such Taxes prior to a request by the Company to apply for such a refund, the Holder will, upon receipt of a request by the Company to apply for, or to turn over the proceeds of, any such refund, pay any such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority), promptly upon receipt of such refund. The Company shall pay all reasonable out-of-pocket expenses incurred by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction Holder in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which connection with obtaining such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinrefund.
Appears in 2 contracts
Samples: Indenture (Carnival Corp), Indenture (Carnival Corp)
Additional Amounts. All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penaltiespenalities, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor (and each Paying Agent) will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such 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 any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders by the Trustee, except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) any withholding or deduction imposed on a payment to an individual which is required to be made pursuant to any law implementing or complying with, or introduced in order to conform to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of 26–27 November 2000 on the taxation of savings income or any agreement between the European Community and any jurisdiction providing for equivalent measures;
(g) as a result of any combination of (a), (b), (c), (d), (e) or (ef) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;; or
(gh) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, Notes or any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 2 contracts
Samples: Indenture (CGG), Indenture (CGG Holding B.V.)
Additional Amounts. All After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by or a non-U.S. Payor on behalf of the Company or any Guarantor under or with respect to the Notes or any guarantee of the Subsidiary Guarantees Notes will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (including without limitationcollectively, penalties, interest and any other liability with respect thereto) (“Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of of:
(1) any jurisdiction in which (other than the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes United States or any political subdivision or governmental authority thereof or therein or any jurisdiction by having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(each2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), unless the Company or will at any Guarantor (or any Paying Agent) is time be required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment payments made under or with respect to the Notes or any guarantee of the Subsidiary GuaranteesNotes, including payments of principal, redemption price, interest or premium, if any, the Company or any such Guarantor non-U.S. Payor will pay to each Holder of the Notes that are outstanding on the date of the required payment, (together with such payments) such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by such the Holder (including the Additional Amounts) after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amount such Holder amounts that would have been received if in respect of such Taxes had not been withheld payments on the Notes or deductedthe guarantees of the Notes in the absence of such withholding or deduction; provided, provided however, that no such Additional Amounts will be payable with respect to any Notefor or on account of:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) any Taxes that would not have been so imposed or levied but for the date on which such payment first became due and (2) if the full amount payable has not been received by existence of any present or on behalf of former connection between the relevant Holder (or the beneficial owner on between a fiduciary, settlor, beneficiary, partner, member or prior to such due dateshareholder of, or possessor of power over, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder orrelevant Holder, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder is an estate, nominee, trust, partnership, limited liability company or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or beneficial owner any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by a statutethe applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all from, or part reduction in the rate of deduction or withholding of, any such tax, assessment or governmental chargeTaxes);
(c3) held any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or the beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is liable substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for Taxes in respect payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such Note by reason of having some connection with payment is given to the Relevant Taxing Jurisdiction other than Holders), except to the mere purchase, holding or disposition of any Note, or extent that the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in such Person would have been entitled to Additional Amounts on presenting the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of on any combination of (a), (b), (c), (d) date during such 30-day period or (ey) or with respect to any payment made by or on behalf of where, had the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of the Note been the Holder of the Note, such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any payment of Additional Amounts had such beneficiary by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required cause to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is any required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The Company non-U.S. Payor will furnish, within 60 days after the date use reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes is due pursuant to applicable law, so deducted or withheld from each relevant taxing authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the TrusteeTrustee and the Holders. If, copies notwithstanding the efforts of tax receipts (such non-U.S. Payor to obtain such receipts, the extent received from same are not obtainable, such non-U.S. Payor will provide the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to and the Holders upon requestwith other reasonable evidence. At If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to each the date on which any payment under or with respect of such payment, the non-U.S. Payor will deliver to the Notes or Trustee an Officer’s Certificate stating the Subsidiary Guarantees is due fact that Additional Amounts will be payable and payable, if the Company or any Guarantor becomes obligated amount so payable and such other information necessary to enable the Paying Agent to pay Additional Amounts with respect to such Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises after the 30th day less than 45 days prior to the date on which relevant payment under or with respect to the Notes or the Subsidiary Guarantees is due and payabledate, in which case it will be paid promptly thereafter the non-U.S. Payor shall deliver such Officer’s Certificate and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts promptly as practicable after the date that is 30 days prior to the Holders payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes on the payment date. Whenever in this Indenture there is mentionedmention of, in any context, :
(a1) the payment of principal principal;
(and premium, if any), (b2) redemption prices or purchase prices in connection with a redemption or purchase of the Notes, ;
(c3) interest or interest; or
(d4) any other amount payable on or with respect to any of the Notes or any guarantee of the Subsidiary Guarantees, Notes; such mention is reference shall be deemed to include mention of the payment of Additional Amounts provided for in as described under this section Section 2.13 to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, non-U.S. Payors will pay any present or future stamp, court or documentary taxes Taxes, or any other excise or excise, property taxes, charges or similar levies Taxes that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial issue resale, registration or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the this Indenture or any other documents related document or instrument in relation thereto (limited, in case other than a transfer of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveNotes). The foregoing obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer a non-U.S. Payor is organized or any Guarantor is incorporated, engaged in business for tax purposes or otherwise considered to be a resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision or taxing authority or agency thereof or therein.
Appears in 2 contracts
Samples: Indenture (Broadcom Inc.), Indenture (Broadcom Inc.)
Additional Amounts. All payments made by or on behalf of the Company or any Guarantor under or with respect to this Note under the Notes Indenture or the Subsidiary Guarantees will pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (“Taxes”) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the Company or any Guarantor (including any successor entities) payor is then organized or otherwise considered to be a resident or engaged in business for tax purposes purposes, or any political subdivision or governmental authority thereof or therein or any jurisdiction by or through which payment is made having the power to tax (each, each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Company Issuer, relevant Guarantor or any Guarantor (or any Paying Agent) other applicable withholding agent is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authoritygovernment authority or agency. If the Company Issuer, a Guarantor or any other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guaranteesany Note Guarantee, the Company Issuer or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required paymentGuarantor, such additional amounts (in the form of (x) in as the case of PIK Interestmay be, additional PIK Interest and will be required to pay such amount (y) in all other cases, cash) (such amount the “Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such Holder holder would have received if such Taxes had not been withheld or deducted; provided, provided however, that no Additional Amounts will be payable with respect to payments made to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except holder to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is Taxes are imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droiti) of the Note with a request addressed to such Holder holder or beneficial owner being considered to provide information, documents be or other evidence concerning the nationality, residence, identity or connection to have been connected with the a Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statuteJurisdiction, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than by the mere purchaseacquisition, ownership, holding or disposition of any this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments made by or on behalf in respect of the Company this Note or any Guarantor in respect thereof or any Subsidiary Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, such Holder providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who controlled foreign corporation that is a fiduciary or partnership or other than related person within the sole beneficial owner meaning of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b864(d)(4) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”)) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or otherwise any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to Sections 1471 through 1474 of the Code FATCA, (or v) with respect to German tax residents any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislationTax withheld by a German custodian, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be who is required to pay any Additional Amounts deduct the withholding tax from such interest payments, provided that this Note is held in respect of FATCA Withholdingcustody with such German custodian. The Company Issuer or any Guarantor (as applicable) required to withhold any Taxes will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Company Issuer or any Guarantor (as applicable) will furnish, within 60 days after the date the payment of any Taxes is due pursuant use commercially reasonable efforts to applicable law, to the Trustee, obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the extent received from the relevant tax authorities Trustee. Wherever in the usual course or as generally provided) evidencing that such payment has been made by the Company Indenture, this Note or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture Note Guarantee there is are mentioned, in any context, (a1) the payment of principal (and premium, if any)principal, (b2) purchase prices in connection with a purchase of Notes under the NotesIndenture or this Note, (c3) interest or (d4) any other amount payable on or with respect to this Note or any of the Notes or the Subsidiary GuaranteesNote Guarantee, such mention is reference shall be deemed to include mention of the payment of Additional Amounts provided for in as described under this section heading to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a GuarantorGuarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as the case may be, applicable) will pay any present to the Trustee or future stampthe Paying Agent such Additional Amounts and, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which if paid to a Paying Agent is located from other than the initial issue or registration Trustee, shall promptly provide the Trustee with documentation evidencing the payment of the Notes or on the enforcement such Additional Amounts. Copies of any payments with respect such documentation shall be made available to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above)holders upon request. The foregoing obligations of the Company or any Guarantor described in this Section 4.19 Paragraph 2 will survive any termination, defeasance or satisfaction and discharge of the Indenture. References in this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person Paragraph 2 to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or shall apply to any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinsuccessor(s) thereto.
Appears in 2 contracts
Samples: Indenture (Fresenius Medical Care AG & Co. KGaA), Indenture (Fresenius Medical Care AG & Co. KGaA)
Additional Amounts. All (a) Subject to Clause 8.1(b), all payments made by or on behalf of the Company or any Guarantor Borrower under or with respect to the Notes or the Subsidiary Guarantees Loan will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment assessment, or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company government or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or territory or possession of any government or authority or Agency therein or any jurisdiction by or through which payment is made thereof having the power to tax (each, a “Relevant Taxing JurisdictionAuthority”) within Russia or Ireland (or any Qualifying Jurisdiction in which the Lender or any successor thereto is resident for tax purposes), unless the Company or any Guarantor (or any Paying Agent) Borrower is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by thereof.
(b) If at any time the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) Borrower is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant any Taxing Authority within Russia or Ireland (or any Qualifying Jurisdiction in which the Lender or any successor thereto is resident for tax purposes) from any payment made under or with respect to the Notes or the Subsidiary GuaranteesLoan, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding Borrower shall, on the due date of the required for such payment, pay such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received and retained by such Holder the Lender (including the Additional Amounts) in U.S. dollars after such withholding or deduction will not be less than the amount such Holder the Lender would have received and retained if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with deducted and free from liability in respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder withholding or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;deduction.
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;The Borrower will also:
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any make such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and ; and
(ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts .
(to the extent received from the relevant tax authorities in the usual course or as generally providedd) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Loan is due and payable, if the Company or any Guarantor becomes Borrower will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after upon written notice by the 30th day prior to Lender or an agent of the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment dateagreed funding source), the Company Borrower will deliver to each Paying Agent the Lender (and, following the execution of the agreements entered into in connection with the agreed funding source, to the party designated by such agreements) an Officers’ Certificate stating the fact that such Additional Amounts will be payable, payable and the amount amounts so payable and will set forth such other information as necessary to enable the Lender (and, following the execution of any other agreements entered into in connection with the agreed funding source, the party designated by such Paying Agent agreements) to pay such Additional Amounts to or for the Holders account of the Notes agreed funding source on the relevant payment date. .
(e) If the Lender pays any amount in respect of such Taxes, the Borrower shall reimburse the Lender in U.S. dollars for such payment on demand.
(f) Whenever in this Indenture there is mentionedAgreement mentions, in any context, (a) the payment of principal (and premiumamounts based upon the principal, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) of any other amount payable on under or with respect to any of the Notes or the Subsidiary GuaranteesLoan, such mention is deemed to include mention of the this includes, without duplication, payment of any Additional Amounts provided for in this section to the extent, that, in such context, Additional and Tax Indemnity Amounts are, were or would that may be payable in respect thereofapplicable. The Company or a Guarantorforegoing provisions shall apply, modified as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments theretonecessary, to any such Taxes imposed or withheld levied by any Taxing Authority in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person obligor to the Issuer or any Guarantor Borrower is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinorganised.
Appears in 2 contracts
Samples: Loan Agreement (Open Joint Stock Co Vimpel Communications), Loan Agreement (Open Joint Stock Co Vimpel Communications)
Additional Amounts. All After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by or a non-U.S. Payor on behalf of the Company or any Guarantor under or with respect to the Notes or any guarantee of the Subsidiary Guarantees Notes will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (including without limitationcollectively, penalties, interest and any other liability with respect thereto) (“Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of of:
(1) any jurisdiction in which (other than the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes United States or any political subdivision or governmental authority thereof or therein or any jurisdiction by having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(each2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), unless the Company or will at any Guarantor (or any Paying Agent) is time be required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment payments made under or with respect to the Notes or any guarantee of the Subsidiary GuaranteesNotes, including payments of principal, redemption price, interest or premium, if any, the Company or any such Guarantor non-U.S. Payor will pay to each Holder of the Notes that are outstanding on the date of the required payment, (together with such payments) such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by such the Holder (including the Additional Amounts) after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amount such Holder amounts that would have been received if in respect of such Taxes had not been withheld payments on the Notes or deductedthe guarantees of the Notes in the absence of such withholding or deduction; provided, provided however, that no such Additional Amounts will be payable with respect to any Notefor or on account of:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) any Taxes that would not have been so imposed or levied but for the date on which such payment first became due and (2) if the full amount payable has not been received by existence of any present or on behalf of former connection between the relevant Holder (or the beneficial owner on between a fiduciary, settlor, beneficiary, partner, member or prior to such due dateshareholder of, or possessor of power over, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder orrelevant Holder, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder is an estate, nominee, trust, partnership, limited liability company or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or beneficial owner any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by a statutethe applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all from, or part reduction in the rate of deduction or withholding of, any such tax, assessment or governmental chargeTaxes);
(c3) held any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or the beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is liable substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for Taxes in respect payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such Note by reason of having some connection with payment is given to the Relevant Taxing Jurisdiction other than Holders), except to the mere purchase, holding or disposition of any Note, or extent that the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in such Person would have been entitled to Additional Amounts on presenting the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of on any combination of (a), (b), (c), (d) date during such 30-day period or (ey) or with respect to any payment made by or on behalf of where, had the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of the Note been the Holder of the Note, such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any payment of Additional Amounts had such beneficiary by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payor will (i) make or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required cause to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is any required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The Company non-U.S. Payor will furnish, within 60 days after the date use reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes is due pursuant to applicable law, so deducted or withheld from each relevant taxing authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the TrusteeTrustee and the Holders. If, copies notwithstanding the efforts of tax receipts (such non-U.S. Payor to obtain such receipts, the extent received from same are not obtainable, such non-U.S. Payor will provide the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to and the Holders upon requestwith other reasonable evidence. At If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to each the date on which any payment under or with respect of such payment, the non-U.S. Payor will deliver to the Notes or Trustee an Officer’s Certificate stating the Subsidiary Guarantees is due fact that Additional Amounts will be payable and payable, if the Company or any Guarantor becomes obligated amount so payable and such other information necessary to enable the Paying Agent to pay Additional Amounts with respect to such Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises after the 30th day less than 45 days prior to the date on which relevant payment under or with respect to the Notes or the Subsidiary Guarantees is due and payabledate, in which case it will be paid promptly thereafter the non-U.S. Payor shall deliver such Officer’s Certificate and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts promptly as practicable after the date that is 30 days prior to the Holders payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes on the payment date. Whenever in this Indenture there is mentionedmention of, in any context, :
(a1) the payment of principal principal;
(and premium, if any), (b2) redemption prices or purchase prices in connection with a redemption or purchase of the Notes, ;
(c3) interest or interest; or
(d4) any other amount payable on or with respect to any of the Notes or any guarantee of the Subsidiary Guarantees, Notes; such mention is reference shall be deemed to include mention of the payment of Additional Amounts provided for in as described under this section Section 2.13 to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, non-U.S. Payor will pay any present or future stamp, court or documentary taxes Taxes, or any other excise or excise, property taxes, charges or similar levies Taxes that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial issue resale, registration or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the this Indenture or any other documents related document or instrument in relation thereto (limited, in case other than a transfer of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveNotes). The foregoing obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer a non-U.S. Payor is organized or any Guarantor is incorporated, engaged in business for tax purposes or otherwise considered to be a resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision or taxing authority or agency thereof or therein.
Appears in 2 contracts
Samples: Indenture, Indenture (Broadcom Inc.)
Additional Amounts. All payments made by or on behalf of the Company or any Guarantor PCS under or with respect to the Notes or the Subsidiary Guarantees will Securities shall be made in U.S. Dollars and shall be free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such 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 any Note:withholding
(a) surrendered by with which PCS does not deal at arm's length (within the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf meaning of the relevant Holder Income Tax Act (Canada)) at the time of making such payment, or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge which is imposed or withheld subject to such Taxes by reason of the failure to comply its being connected with Canada or any province or any territory thereof otherwise than by the Holder or, if different, the beneficial owner (ayant-droit) mere holding of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, Securities or the receipt of payments made by or on behalf of the Company or any Guarantor thereunder. PCS will also in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or accordance with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg applicable law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any make such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (b) remit the full amount deducted or withheld to the relevant authority in accordance with applicable lawauthority. The Company PCS will furnishfurnish to the Holder of such Securities, within 60 30 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been by PCS. PCS will indemnify and hold harmless each Holder (other than an Excluded Holder) and upon written request reimburse each such Holder for the amount of (a) any Taxes so levied or imposed and paid by such Holder as a result of payments made by the Company under or with respect to Securities, (b) any Guarantor. The Trustee will make liability (including penalties, interest and expenses) arising therefrom or with respect thereto, and (c) any Taxes imposed with respect to any reimbursement under (a) or (b) in this sentence, but excluding any such evidence available to the Holders upon requestTaxes on such Holder's net income. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Securities is due and payable, if the Company or any Guarantor becomes PCS will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payablepayment, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company PCS will deliver to each Paying Agent the Trustee an Officers’ Officer's Certificate stating the fact that such Additional Amounts will be payable, and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever Wherever in this Indenture there is mentioned, in any contextcontext except in the case of Section 502(a), the payment of the principal of (aor premium, if any) or interest on, or in respect of, any Security of any series or payment of any related coupon or the net proceeds received on the sale or exchange of any Security of any series, the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on under or with respect to any of the Notes or the Subsidiary Guaranteesa Security, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company obligations of PCS under this Section 1009 shall survive the termination of this Indenture and the payment of all amounts under or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinSecurities.
Appears in 2 contracts
Samples: Indenture (Potash Corporation of Saskatchewan Inc), Indenture (Potash Corporation of Saskatchewan Inc)
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor Issuers under or with respect to the Notes or Securities and by the Subsidiary Guarantees Company under the Guaranty will be made free and clear of and without withholding or deduction for or on account of any present or future taxtaxes, dutylevies, levyduties, impostfees, assessment assessments or other governmental charge charges of whatever nature (including without limitation"Taxes") imposed, penaltieslevied, interest and any other liability with respect thereto) (“Taxes”) imposed collected or levied assessed by or on behalf of any jurisdiction in which taxing authority within the Company Cayman Islands or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”)Thailand, unless the Issuers are or the Company is, as the case may be, required to withhold or any Guarantor (deduct Taxes by law or any Paying Agent) by the interpretation or administration thereof. If the Issuers are or the Company is required to withhold or deduct Taxes under or if the laws of the Relevant Taxing Jurisdiction Issuers are or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so otherwise required to withhold or deduct pay any amount for or on account of Taxes imposed by a taxing authority within the Cayman Islands or levied by Thailand from or on behalf in respect of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes Securities or the Subsidiary GuaranteesGuaranty, the Company Issuers or any such Guarantor the Company, as the case may be, will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“"Additional Amounts”") as may be necessary so that the net amount received by such each Holder and beneficial owner of Securities (including the Additional Amounts) after such withholding or deduction or other payment of Taxes will not be less than the amount such Holder or beneficial owner would have received if such Taxes had not been withheld or deducteddeducted or paid; provided, provided however, that no Additional Amounts will be payable with respect to a payment made to a Holder or beneficial owner of Securities with respect to any Note:
Tax: (ai) surrendered by which would not have been imposed, payable or due but for the existence of any present or former connection between such Holder (or the beneficial owner thereof of, or Person ultimately entitled to obtain an interest in, such Securities) and the Cayman Islands or Thailand, as the case may be, other than the mere holding of such Securities; (ii) which would not have been imposed, payable or due if such Securities had been held in definitive registered form ("Definitive Registered Securities") and the presentation of Definitive Registered Securities for payment of principal more than had occurred within 30 days after the later of (1) the date on which such payment first became was due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior was provided for, whichever is later, except for Additional Amounts with respect to such due date, the date on which, the full amount having been so received, notice to Taxes that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to imposed had the holder presented such Additional Amounts on surrendering such Note Securities for payment on any day date during the applicable 30-such 30 day period;
; (biii) if any taxthat is an estate, assessment inheritance, gift, sales, transfer, personal property or other governmental charge similar Tax; (iv) that is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide informationcomply, documents at the reasonable request of the Issuers or the Company, as the case may be, with certification, information or other evidence reporting requirements concerning the nationality, residence, residence or identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which if such compliance is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
Tax; (cv) held by or on behalf of a Holder or if the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Noteof, or Person ultimately entitled to obtain an interest in, such Securities had been the receipt of payments made by or on behalf Holder of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account Securities and would not be entitled to the payment of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) Additional Amounts; or (evi) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding from payments on or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. any Security.
(b) The Company Issuers or any Guarantor the Company, as the case may be, will also (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company Issuers or the Company, as the case may be, will furnishmake reasonable 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 Issuers or the Company, as the case may be, will furnish to the Holders, within 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, to the Trustee, either certified copies of tax receipts evidencing such payment by the Issuers or the Company, as the case may be, or, if such receipts are not obtainable, other evidence of such payments by the Issuers or the Company.
(c) In addition, the Issuers or the Company, as the case may be, will upon written request of each Holder (subject to the extent received from exclusions set forth in (i), (ii), (iii), (iv), (v) and (vi) of paragraph (a) above), and provided that reasonable supporting documentation is provided, reimburse each such Holder for the relevant tax authorities in the usual course amount of any Taxes levied or as generally provided) evidencing that such payment has been made imposed by the Company Cayman Islands or any Guarantor. The Trustee will make Thailand and paid by such evidence available Holder as a result of payments made under or with respect to the Holders upon requestSecurities or under the Guaranty. Any payment pursuant to this section shall be an Additional Amount.
(d) At least 30 days prior to each date on which any payment under or with respect to the Notes Securities or under the Subsidiary Guarantees Guaranty is due and payable, if the Issuers or the Company or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after payment, the 30th day prior to the date on which payment under Issuers or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent the Trustee an Officers’ ' Certificate stating the fact that such Additional Amounts will be payable, payable and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes Securities on the payment date. Whenever in the Indenture or in this Indenture Security there is mentioned, in any context, (a) the payment of amounts based upon the principal (and of, premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) of any other amount payable on under or with respect to any of the Notes Security or the Subsidiary Guarantees, Guaranty such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor.
(e) In addition, as the case may be, Issuers will pay any present or future stamp, court issue, registration, documentary, value added or documentary other similar taxes or any and other excise or property taxes, charges or similar levies that arise duties (including interest and penalties) payable in the United States, the Republic of France Cayman Islands or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto Thailand (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereintaxing authority of either jurisdiction) and in the United States in respect of the creation, issue, offering, execution or enforcement of the Securities, the Guaranty or any documentation with respect thereto.
Appears in 2 contracts
Samples: Indenture (NSM Steel Co LTD), Indenture (NSM Steel Co LTD)
Additional Amounts. All payments made by The payment of Capital Payments on the Class B Preferred Securities, and any amount payable upon redemption thereof or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will in liquidation, shall be made free and clear of and without any deduction or withholding or deduction for or on account of any present or future taxtaxes, dutyduties or governmental charges of any nature whatsoever imposed, levylevied or collected by or on behalf of the United States or Germany (or any jurisdiction from which payments are made) or, impostduring any period in which any Substitute Obligations are outstanding, assessment the jurisdiction of residence of any obligor on such Substitute Obligations (or other governmental charge (including without limitation, penalties, interest and any other liability with respect theretojurisdiction from which payments are made) (each a “TaxesRelevant Jurisdiction”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or authority therein or any jurisdiction by or through which payment is made thereof having the power to tax (eachcollectively, a “Relevant Taxing JurisdictionWithholding Taxes”), unless such deduction or withholding is required by law. In such event, the Company or any Guarantor shall pay as additional Capital Payments, such additional amounts (or any Paying Agentthe “Additional Amounts”) is required to withhold or deduct Taxes under the laws of Class B Preferred Securityholders as may be necessary in order that the Relevant Taxing Jurisdiction or net amounts received by the interpretation Class B Preferred Securityholders and the Trust Preferred Securityholders after such deduction or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount withholding for or on account of Withholding Taxes imposed shall equal the amounts that otherwise would have been received had no such deduction or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with withholding been required, provided, however, that no such Additional Amounts shall be payable in respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such 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 any Note:Class B Preferred Securities
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2i) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except and to the extent that the Holder or Company is unauthorized to pay because such payment would exceed the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason Distributable Profits of the failure to comply by Bank for the Holder orpreceding fiscal year (after subtracting from such Distributable Profits the aggregate amount of the Capital Payments on the Class B Preferred Securities and any capital payments or dividends on Preferred Tier 1 Securities, if differentany, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be already paid on the Notes by basis of such Distributable Profits on or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will shall be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, );
(aii) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any Withholding Taxes that are payable by reason of a Holder or beneficial owner of Class B Preferred Securities (other than the Trust) having some connection with any Relevant Jurisdiction other than by reason only of the Notes mere holding or the Subsidiary Guarantees, such mention is deemed beneficial ownership of Class B Preferred Securities;
(iii) with respect to include mention of the payment of Additional Amounts provided for in this section any Withholding Taxes which are deducted or withheld pursuant to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes (i) European Council Directive 2003/48/EC or any other excise European Union Directive or property taxesRegulation implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income, charges or similar levies that arise (ii) any international treaty or understanding entered into for the purpose of facilitating cooperation in the reporting and collection of savings income and to which (x) the United States, and (y) the Republic European Union or Germany is a party, or (iii) any provision of France law implementing, or in any jurisdiction in which a Paying Agent is located from the initial issue complying with, or registration of the Notes introduced to conform with, such Directive, Regulation, treaty or on the enforcement of any payments with respect understanding; or
(iv) to the Notes, any Subsidiary Guarantee, extent such deduction or withholding can be avoided or reduced if the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder Holder or beneficial owner of its notesClass B Preferred Securities makes a declaration of non-residence or other similar claim for exemption to the relevant tax authority or complies with any reasonable certification, and will applydocumentation, mutatis mutandisinformation or other reporting requirement imposed by the relevant tax authority, provided, however, that the exclusion set forth in this clause (iv) shall not apply if the certification, information, documentation or other reporting requirement would be materially more onerous (in form, procedure or substance of information required to be disclosed), to any jurisdiction in which any successor Person to the Issuer Holder or any Guarantor is incorporatedbeneficial owner of Class B Preferred Securities than comparable information or other reporting requirements imposed under U.S. tax law, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which regulation and administrative practice (such Person makes any payment on the Notes as IRS Forms W-8 and any department or any political subdivision thereof or thereinW-9).
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Deutsche Bank Aktiengesellschaft), Limited Liability Company Agreement (Deutsche Bank Capital Funding LLC IX)
Additional Amounts. (a) All payments made by or on behalf of that the Company or any Guarantor Issuer makes under or with respect to the Notes or the that any Subsidiary Guarantees will Guarantor makes under or with respect to its Guarantee shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and any other liability with respect similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company Issuer, the Subsidiary Guarantor or any Guarantor Surviving Entity is incorporated, organized, engaged in business (including any successor entitieswhere such Tax is imposed by reason of the Issuer, Subsidiary Guarantor, or Surviving Entity being engaged in business) is then organized or otherwise resident for tax purposes or from or through which any of the foregoing makes any payment on the Notes or the Guarantees (including the jurisdiction of any paying agent) or by or within any department or political subdivision thereof or therein or any jurisdiction by or through which payment is made having power to tax (each, a “Relevant Taxing Jurisdiction”), unless the Company Issuer or any Guarantor (or any Paying Agent) such Subsidiary Guarantor, as the case may be, is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authorityof law. If the Company Issuer or any Subsidiary Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guaranteesa Guarantee, the Company Issuer or any such Guarantor will Subsidiary Guarantor, as the case may be, shall pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so to ensure that the net 2 Insert if Global Note. amount received by such each Holder of the Notes (including the Additional Amounts) after such withholding or deduction will shall be not be less than the amount such the Holder would have received if such Taxes had not been required to be withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;.
(b) if Neither the Issuer nor any taxSubsidiary Guarantor shall, assessment however, pay Additional Amounts in respect or other governmental charge is on account of:
(i) any Taxes that are imposed or withheld levied by a Relevant Taxing Jurisdiction by reason of a present or former connection of a Holder (or a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if the Holder is an estate, a trust, a partnership or a corporation) or a beneficial owner with such Relevant Taxing Jurisdiction (other than the mere receipt or holding of Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under any Notes, Guarantees or the Indenture);
(ii) any Taxes that are imposed or levied by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of Notes, following the Issuer’s written request addressed to provide information, documents or other evidence concerning the nationality, residence, identity or connection with Holder (and made at a time which would enable the Relevant Taxing Jurisdiction of such Holder or beneficial owner acting reasonably to comply with that request), to comply with any certification, identification, information or other reporting requirements which the Holder or such beneficial owner is legally required or and legally entitled to satisfy, whether imposed by a statute, treaty, regulation or administrative practice of the a Relevant Taxing Jurisdiction Jurisdiction, as a precondition to exemption from all from, or part reduction in the rate of such taxdeduction or withholding of, assessment or governmental charge;
(c) held Taxes imposed by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, (including, without limitation, such a certification that the Holder or beneficial owner being or having been a citizen or is not resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment thereinthe Relevant Taxing Jurisdiction);
(diii) on account of any estate, inheritance, gift, salesales, transfer, personal property transfer or other similar tax, assessment or other governmental chargeTaxes;
(eiv) except in any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the case of the winding up of the Company Notes or any Guarantor, any Note surrendered for payment in the Republic of FranceGuarantees;
(fv) as any Tax that is imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of such Notes for payment on a result of date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficial owner or Holder thereof would have been entitled to Additional Amounts had the Notes been presented for payment on any combination of date during such 30 day period;
(a), (b), (c), (dvi) or (e) any Tax imposed on or with respect to any payment made by or on behalf of the Company Issuer or any Subsidiary Guarantor in respect of any Note or Subsidiary Guarantee to any the Holder who if such Holder is a fiduciary or partnership or person other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary, member of such partnership or the beneficial owner of such payment would not have been entitled to any Additional Amounts had such beneficiary or settlor beneficiary, settlor, member or beneficial owner been the Holderactual Holder of such Note;
(gvii) any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union;
(viii) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed or levied on a payment to a Luxembourg resident an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the Luxembourg conclusions of the ECOFIN Council meeting of 26–27 November 2000 on the taxation of savings income or any law of 23 December 2005;
(h) when such withholding implementing or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established incomplying with, or (y) paid or accrued introduced in order to a person established or domiciled inconform to, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any GuarantorDirective; or
(kix) Any any combination of items the above.
(ac) through The Issuer and any Subsidiary Guarantor shall (ji) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant taxing authority in the Relevant Taxing Jurisdiction in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts .
(to the extent received from the relevant tax authorities in the usual course or as generally providedd) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company Issuer or any Subsidiary Guarantor becomes shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will shall be paid promptly thereafter and in any case before the relevant payment datethereafter), the Company will Issuer shall deliver to each Paying Agent the Trustee an Officers’ Officer’s Certificate stating the fact that such Additional Amounts will shall be payable, payable and the amount amounts so payable and will shall set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever The Issuer shall promptly publish a notice in this accordance with the provisions set forth in Section 13.02 of the Indenture there is mentionedstating that such Additional Amounts shall be payable and describing the obligation to pay such amounts.
(e) Upon request, in any context, (a) the Issuer or the Subsidiary Guarantors shall furnish to the Trustee or the Holder copies of tax receipts evidencing the payment of principal (any Taxes by the Issuer or the applicable Subsidiary Guarantor in such form as provided in the normal course by the taxing authority imposing such Taxes and premium, if any), (b) purchase prices in connection with a purchase as is reasonably available to the Issuer or the applicable Subsidiary Guarantor. If notwithstanding the efforts of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes Issuer or the Subsidiary GuaranteesGuarantors to obtain such receipts, the same are not obtainable, the Issuer or the applicable Subsidiary Guarantor shall provide the Trustee or such mention is deemed to include mention of the payment of Additional Amounts provided for in this section Holder other evidence satisfactory to the extentTrustee or the Holder of such payments by the Issuer or the applicable Subsidiary Guarantor.
(f) In addition, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will Issuer and the Subsidiary Guarantors shall pay any present or future stamp, court or documentary taxes or any other issue, registration, documentation, excise or property taxes or other similar taxes, charges or similar levies that arise and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the United Statesexecution, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue issue, delivery or registration of the Notes or on any other document or instrument referred to thereunder (other than in respect of the execution, issue, delivery or registration of Notes pursuant to Section 2.06, Section 2.07 or Section 2.10(a)(iv) of the Indenture) and any such taxes, charges or duties imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes and/or any payments other such document or instrument following the occurrence of any Event of Default with respect to the Notes, any and the Issuer and each Subsidiary Guarantee, Guarantor shall indemnify the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to Holders for any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses taxes paid by such Holders.
(ag) through (k) above). The obligations of the Company or any Guarantor described in under this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, paragraph 3 shall apply mutatis mutandis, mutandis to any jurisdiction in which any Surviving Entity or successor Person person to the Issuer or any Guarantor is incorporated, organized, engaged in business for tax purposes or otherwise resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department purposes, or any political subdivision or taxing authority thereof or therein. Whenever the Indenture or this Note refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note, such reference includes the payment of Additional Amounts, if applicable.
Appears in 2 contracts
Samples: Indenture (Invitel Holdings a/S), Indenture (Invitel Holdings a/S)
Additional Amounts. All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment assessment, or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (“Taxes”collectively, "TAXES") imposed or levied by or on behalf of Luxembourg or any other jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or is a resident for tax purposes or by any government authority or political subdivision thereof or territory or possession or agency therein or any jurisdiction by or through which payment is made thereof having the power to tax (each, a “Relevant Taxing Jurisdiction”"TAXING AUTHORITY"), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authoritythereof. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed by a Taxing Authority within Luxembourg or levied by within any other jurisdiction in which the Company is organized or on behalf of is a Relevant Taxing Jurisdiction resident for tax purposes, from any payment made under or with respect to the Notes or the Subsidiary GuaranteesNotes, the Company or any such Guarantor will shall pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”"ADDITIONAL AMOUNTS") as may be necessary so that the net amount received by such each Holder (including the Additional Amounts) of Notes after such withholding or deduction will not be less than the amount such the Holder and beneficial owner would have received if such Taxes had not been withheld or deducted, provided ; PROVIDED that no Additional Amounts will shall be payable with respect to any Note:
a payment made to a Holder of Notes or to a third party on behalf of a Holder, with respect to (a) surrendered any Taxes that would not have been so imposed but for the existence of any present or former connection between such Holder and the jurisdiction imposing such tax (other than the mere receipt of such payment or the ownership or holding outside of Luxembourg of such Note); (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; (c) any Taxes payable otherwise than by deduction or withholding from payments of principal of, premium, if any, or interest on such Note; or (d) Taxes that would not have been imposed but for the failure of the Holder or the beneficial owner thereof of a Note to comply, upon written request therefor furnished by the Company to the Trustee, with any certification, identification, information, or other documentation requirement under law, regulation, administrative practice or an applicable treaty that is a precondition to exemption from, or reduction in the rate of the imposition, deduction or withholding of Taxes; nor shall Additional Amounts be paid: (i) if the payment under or with respect to the Notes could have been made by another paying agent without such deduction or withholding, (ii) if the payment under or with respect to the Notes could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment of principal more than within 30 days after the later of (1A) the date on which such payment first or such Note became due and payable or (2B) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on whichwhich payment thereof is duly provided for, the full amount having been so received, notice to that effect shall have been given to the Holders whichever is later (except to the extent that the Holder or the beneficial owner holder would have been entitled to such Additional Amounts had the Note been presented on surrendering the last day of such Note for payment on any day during the applicable 30-30 day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (diii) or (e) or with respect to any payment made by under or on behalf of with respect to the Company or any Guarantor in respect of any Note or Subsidiary Guarantee Notes to any Holder holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to any the Additional Amounts had such beneficiary or settlor beneficiary, settlor, member or beneficial owner been the Holder;
(g) actual holder of such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
Note. The Company shall also (i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company shall use its reasonable 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 will furnishsupply to the Trustee for forwarding to all Holders, without cost to such Holders, within 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make if, notwithstanding the Company's efforts to obtain such receipts, the same are not obtainable, other evidence available to of such payments by the Holders upon requestCompany. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)payment, the Company will shall deliver to each Paying Agent the Trustee an Officers’ ' Certificate stating the fact that such Additional Amounts will be payable, and the amount amounts so payable and will shall set forth such other information as is necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders holders of the Notes on the payment date. The foregoing provisions shall survive any termination or the discharge of this Indenture and shall apply MUTATIS MUTANDIS to any jurisdiction in which any successor Person to the Company is organized or is engaged in business for tax purposes or any political subdivision or taxing authority or agency thereof or therein. In addition, the Company shall pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest and penalties, payable in Luxembourg or any political subdivision thereof or therein in respect of the creation, issue and offering of the Notes. Whenever in this Indenture or the Notes there is mentioned, mentioned in any context, (a) the payment of amounts based upon principal (and of, premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) or interest or (d) of any other amount payable on under or with respect to any of the Notes or the Subsidiary GuaranteesNotes, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 2 contracts
Samples: Indenture (Carrier1 International S A), Indenture (Carrier1 International S A)
Additional Amounts. All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such 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 any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-non- coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 2 contracts
Additional Amounts. All payments made by or on behalf The Company will pay to Holders of the Company Securities such Additional Amounts as may be necessary in order that every net payment of principal, premium, if any, Change of Control Purchase Price, Redemption Price or interest in respect of any Guarantor under Securities, after deduction or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge imposed upon or as a result of such payment by (including without limitationi) Bermuda or Ireland or any political subdivision or governmental authority thereof or therein having power to tax, penalties(ii) any jurisdiction from or through which payment is made, interest and or any political subdivision or governmental authority thereof or therein having the power to tax, or (iii) any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or otherwise considered to be a resident for tax purposes purposes, or any political subdivision or governmental authority thereof or therein or any jurisdiction by or through which payment is made (eachhaving the power to tax, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount provided for in such Holder would have received if such Taxes had not been withheld or deductedSecurities to be then due and payable; provided, provided however, that no the foregoing obligation to pay Additional Amounts will be payable not apply
(a) with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof Security presented for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by by, or on behalf of, a Holder who is liable for such taxes, duties, assessments or other governmental charges in respect of such Securities by reason of such Holder being a resident, domiciliary or national of, or engaging in business or maintaining a permanent establishment or being physically present in, a Relevant Taxing Jurisdiction, or any political subdivision or taxing authority thereof or therein, or other- wise having some connection with a Relevant Taxing Jurisdiction, or any political subdivision or taxing authority thereof or therein, other than the relevant Holder or the beneficial owner on or prior to mere holding of such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day periodSecurities;
(b) if to any tax, assessment or other governmental charge is which would not have been imposed but for the fact that such Holder (i) presented its Securities for payment more than 30 days after the Relevant Date, except to the extent that the Holder would have been entitled to Additional Amounts if it had presented such Securities for payment on any day within the 30-day period or withheld by reason of (ii) presented such Securities for payment in the Relevant Taxing Jurisdiction, unless such Securities could not have been presented for payment elsewhere;
(c) to any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply comply, following a request by the Holder orCompany to the Holder, if differentwith any certification, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder identification or beneficial owner to provide information, documents or other evidence reporting requirements concerning the nationality, residence, identity or connection with the a Relevant Taxing Jurisdiction Jurisdiction, or any political subdivision or taxing authority thereof or therein, of such the Holder or beneficial owner which of the Securities, if compliance is required by statute or imposed by regulation of a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction Jurisdiction, or any political subdivision or taxing authority thereof or therein, as a precondition to exemption from all or part of such tax, assessment or other governmental charge;
(cd) held by or on behalf with respect to any Holder that has elected not to permit redemption of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment thereinits Securities pursuant to Section 11.8;
(de) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(ef) except in the case any tax, assessment or other governmental charge that is payable other than by withholding or deduction at source; or
(g) any combination of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
clauses (a) through (f) as a result of any combination of (a)above. In addition, (b), (c), (d) or (e) or the Company will not pay Additional Amounts with respect to any payment made by of principal of, or on behalf of the Company premium, if any, interest or any Guarantor in respect of other amounts on, any Note or Subsidiary Guarantee Security to any Holder who is a fiduciary or partnership fiduciary, partnership, limited liability company or other than the sole beneficial owner of such payment a Security, to the extent that the payment would be required by the laws of the Relevant Taxing Jurisdiction, or any political subdivision or relevant taxing authority thereof or therein, to be included in the income for tax purposes of a beneficiary beneficiary, partner, member or settlor with respect to such fiduciary or a member of such partnership or limited liability company or a beneficial owner who would not have been entitled to any such Additional Amounts had such beneficiary or settlor or beneficial owner it been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 2 contracts
Samples: Limited Waiver (Elan Corp PLC), Limited Waiver (Elan Corp PLC)
Additional Amounts. (a) All payments made by or on behalf of that the Company or any Guarantor Issuer makes under or with respect to the Notes or the that any Subsidiary Guarantees will Guarantor makes under or with respect to its Guarantee shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and any other liability with respect similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company Issuer, the Subsidiary Guarantor or any Guarantor Surviving Entity is incorporated, organized, engaged in business (including any successor entitieswhere such Tax is imposed by reason of the Issuer, Subsidiary Guarantor, or Surviving Entity being engaged in business) is then organized or otherwise resident for tax purposes or from or through which any of the foregoing makes any payment on the Notes or by or within any department or political subdivision thereof or therein or any jurisdiction by or through which payment is made having power to tax (each, a “Relevant Taxing Jurisdiction”), unless the Company Issuer or any Guarantor (or any Paying Agent) such Subsidiary Guarantor, as the case may be, is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authorityof law. If the Company Issuer or any Subsidiary Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesNotes, the Company Issuer or any such Guarantor Subsidiary Guarantor, as the case may be, will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so to ensure that the net amount received by such each Holder of the Notes (including the Additional Amounts) after such withholding or deduction will be not be less than the amount such the Holder would have received if such Taxes had not been required to be withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;.
(b) if Neither the Issuer nor any taxSubsidiary Guarantor will, assessment however, pay Additional Amounts in respect or other governmental charge is on account of:
(i) any Taxes that are imposed or withheld levied by a Relevant Taxing Jurisdiction by reason of a present or former connection of a Holder (or a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if the Holder is an estate, a trust, a partnership or a corporation) or a beneficial owner with such Relevant Taxing Jurisdiction (other than the mere receipt or holding of Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under any Notes or this Indenture);
(ii) any Taxes that are imposed or levied by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of Notes, following the Issuer’s written request addressed to provide information, documents or other evidence concerning the nationality, residence, identity or connection with Holder (and made at a time which would enable the Relevant Taxing Jurisdiction of such Holder or beneficial owner acting reasonably to comply with that request), to comply with any certification, identification, information or other reporting requirements which the Holder or such beneficial owner is legally required or to satisfy, whether imposed by a statute, treaty, regulation or administrative practice of the a Relevant Taxing Jurisdiction Jurisdiction, as a precondition to exemption from all from, or part reduction in the rate of such taxdeduction or withholding of, assessment or governmental charge;
(c) held Taxes imposed by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, (including, without limitation, such a certification that the Holder or beneficial owner being or having been a citizen or is not resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment thereinthe Relevant Taxing Jurisdiction);
(diii) on account of any estate, inheritance, gift, salesales, transfer, personal property or other similar tax, assessment or other governmental chargeTaxes;
(eiv) except in any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of FranceNotes;
(fv) as any Tax that is imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of such Notes for payment on a result of date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficial owner or Holder thereof would have been entitled to Additional Amounts had the Notes been presented for payment on any combination of date during such 30 day period;
(a), (b), (c), (dvi) or (e) any Tax imposed on or with respect to any payment made by or on behalf of the Company Issuer or any Subsidiary Guarantor in respect of any Note or Subsidiary Guarantee to any the Holder who if such Holder is a fiduciary or partnership or person other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary member of such partnership or the beneficial owner of such payment would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficiary, settlor, member of beneficial owner been the Holderactual Holder of such Note;
(gvii) any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union;
(viii) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed or levied on a payment to a Luxembourg resident an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the Luxembourg conclusions of the ECOFIN Council meeting of November 26–27, 2000 on the taxation of savings income or any law of 23 December 2005;
(h) when such withholding implementing or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established incomplying with, or (y) paid or accrued introduced in order to a person established or domiciled inconform to, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any GuarantorDirective; or
(kix) Any any combination of items the above.
(ac) through (j) above. Notwithstanding The Issuer and any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Subsidiary Guarantor will also (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant taxing authority in the Relevant Taxing Jurisdiction in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts .
(to the extent received from the relevant tax authorities in the usual course or as generally providedd) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company Issuer or any Subsidiary Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment datethereafter), the Company Issuer will deliver to each Paying Agent the Trustee an Officers’ Officer’s Certificate stating the fact that such Additional Amounts will be payable, payable and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever The Issuer will promptly publish a notice in this Indenture there is mentionedaccordance with the provisions set forth in Section 13.02 stating that such Additional Amounts will be payable and describing the obligation to pay such amounts.
(e) Upon request, in any context, (a) the Issuer or the Subsidiary Guarantors shall furnish to the Trustee or the Holder copies of tax receipts evidencing the payment of principal (any Taxes by the Issuer or the applicable Subsidiary Guarantor in such form as provided in the normal course by the taxing authority imposing such Taxes and premium, if any), (b) purchase prices in connection with a purchase as is reasonably available to the Issuer or the applicable Subsidiary Guarantor. If notwithstanding the efforts of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes Issuer or the Subsidiary GuaranteesGuarantors to obtain such receipts, the same are not obtainable, the Issuer or the applicable Subsidiary Guarantor will provide the Trustee or such mention is deemed to include mention of the payment of Additional Amounts provided for in this section Holder other evidence satisfactory to the extentTrustee or the Holder of such payments by the Issuer or the applicable Subsidiary Guarantor.
(f) In addition, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will Issuer and the Subsidiary Guarantors shall pay any present or future stamp, court or documentary taxes or any other issue, registration, documentation, excise or property taxes or other similar taxes, charges or similar levies that arise and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the United Statesexecution, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue issue, delivery or registration of the Notes or on any other document or instrument referred to thereunder (other than in respect of the execution, issue, delivery or registration of Notes pursuant to Section 2.06, Section 2.07 or Section 2.10(a)(iv)) and any such taxes, charges or duties imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes and/or any payments other such document or instrument following the occurrence of any Event of Default with respect to the Notes, any and the Issuer and each Subsidiary Guarantee, Guarantor shall agree to indemnify the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to Holders for any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses taxes paid by such Holders.
(ag) through (k) above). The obligations of the Company or any Guarantor described in under this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, 4.17 shall apply mutatis mutandis, mutandis to any jurisdiction in which any Surviving Entity or successor Person person to the Issuer or any Guarantor is incorporated, organized, engaged in business for tax purposes or otherwise resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department purposes, or any political subdivision or taxing authority thereof or therein. Whenever this Indenture refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note, such reference includes the payment of Additional Amounts, if applicable.
Appears in 1 contract
Additional Amounts. All payments made by or on behalf of the Company Issuer or any Guarantor as well as all payments made by a trustee (each, a “Payor”) pursuant to Article 8 hereof under or with respect to the Notes or the Subsidiary Guarantees any Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of any government or political subdivision or territory or possession of any government or authority or agency or authority therein or thereof having the power to tax in any jurisdiction in which the Company Issuer or any Guarantor (including any successor entitiestheir permitted successors and assigns) is then organized incorporated, engaged in business or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), ) unless the Company or any Guarantor (or any Paying Agent) such Payor is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the official interpretation or administration thereof by the relevant taxing authoritythereof. If the Company or any Guarantor (or any Paying Agent) a Payor is so required to withhold or deduct any amount of interest for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any Guarantee such Guarantor Payor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) interest (“Additional Amounts”) as may be necessary so such that the net amount received in respect of such payment by such each Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such the Holder would have received if such Taxes had not been required to be so withheld or deducted, ; provided that no Additional Amounts will be payable with respect to any Note:a payment made to a Holder to the extent
(a) surrendered any such Taxes would not have been imposed but for the existence of any present or former connection between such Holder and the Relevant Jurisdiction imposing such Taxes otherwise than merely by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due dateacquisition, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding ownership or disposition of any Note, Note or the receipt of payments made by or on behalf of the Company or receiving any Guarantor payment in respect thereof or the exercise or enforcement of any Subsidiary Guarantee, including, without limitation, such Holder rights under any Notes or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;the Guarantees or
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the Luxembourg conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income or any law of 23 December 2005;
(h) when such withholding implementing or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established incomplying with, or introduced in order to conform to, such Directive (ysuch amounts described in clause (a) paid or accrued to a person established or domiciled inabove and this clause (b), a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
“Excluded Taxes”). Each Payor will also (i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company Payor will furnishfurnish to the Holders of the Notes, within 60 30 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts evidencing such payment by such Payor. Each of the Issuer and each Guarantor will indemnify and hold harmless each Holder for the amount of (i) any Taxes (other than Excluded Taxes) not withheld or deducted by a Payor and levied or imposed and paid by such Holder as a result of payments made under or with respect to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company Notes or any Guarantor. The Trustee will make such evidence available Guarantee, (ii) any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, and (iii) any Taxes imposed with respect to the Holders upon requestany 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 Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes a Payor is aware that it will be obligated to pay Additional Amounts with respect to such payment (unless payment, such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company Payor will deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this the Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on under or with respect to any of the Notes Note or the Subsidiary Guaranteesany Guarantee, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company Issuer or a Guarantorthe Guarantors, as the case may be, will pay any present or future stamp, transfer, court or documentary taxes taxes, or any other excise or property taxes, charges or similar levies that which arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue original execution, delivery or registration of the Notes or on Notes, the initial resale thereof by the Initial Purchaser and the enforcement of the Notes, the Guarantees or the Collateral Agreements following the occurrence of any payments Event of Default with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 foregoing provisions will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, the Notes and will apply, shall apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer or any Guarantor Guarantor, as the case may be, is organized, incorporated, engaged in business for tax purposes or business, resident for tax purposes purposes, or any jurisdiction from or through which such Person makes any payment otherwise subject to taxation on the Notes and any department a net income basis or any political subdivision sub-divisions or taxing authority or agency thereof or therein.
Appears in 1 contract
Samples: Indenture (Edgen Murray PLC)
Additional Amounts. All payments made by (a) The Company, Avadel or on behalf of any successor to the Company or any Guarantor Avadel under or with respect to this Indenture, the Guarantee and/or the Notes (each, an “Obligor”) shall, subject to the exceptions and limitations set forth below, pay to a Holder of any Note such additional amounts (the “Additional Amounts”) as may be necessary in order that every net payment by any Obligor or a Paying Agent of the Subsidiary Guarantees will be made free principal of (including, if applicable, the Fundamental Change Repurchase Price and clear the Redemption Price) and interest on such Note, any delivery of cash and/or ADSs or other Reference Property upon exchange of such Note, and without any other amounts payable on such Note, after withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount provided for herein and in the Notes to be then due and payable under the Notes had no such Holder would have received if such Taxes had not withholding or deduction been withheld or deducted, made; provided that no the obligation to pay Additional Amounts will be payable with respect to any Noteshall not apply:
(ai) surrendered by the Holder to any present or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any future tax, assessment or other governmental charge is that would not have been so imposed but for:
(A) the existence of any present or withheld by reason former connection between the Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of the failure to comply Holder, if the Holder is an estate, a trust, a partnership, a limited liability company or a corporation) and a Relevant Jurisdiction and its possessions, including, without limitation, the Holder (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident of a Relevant Jurisdiction or being or having been engaged in a trade or business or present in a Relevant Jurisdiction or having, or having had, a permanent establishment in a Relevant Jurisdiction, or
(B) the presentation by the Holder orof any Note, if differentwhere presentation is required, for payment or delivery on a date more than 30 days after the beneficial owner date on which payment or delivery became due and payable or the date on which payment or delivery thereof is duly provided for, whichever occurs later;
(ayant-droitii) of the Note with a request addressed to such Holder any estate, inheritance, gift, sales, transfer, capital gains, excise or beneficial owner to provide information, documents personal property tax or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such any similar tax, assessment or governmental charge;
(ciii) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of to any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who charge that is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under payments on or with in respect to the Notesof any Note;
(jiv) when to any tax, assessment or other governmental charge that would not have been imposed but for the 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 a Relevant Jurisdiction as a precondition to relief or exemption from the tax, assessment or other governmental charge, and proper notice has been sent to the Holder;
(v) to any tax, assessment or other governmental charge required to be withheld by any Paying Agent from any payment of the principal of (including the Fundamental Change Repurchase Price and the Redemption Price, if applicable), or interest on, any Note, or the delivery of cash and/or ADSs or other Reference Property upon exchange of such Note, if such tax, assessment or other governmental charge results from the presentation of any Note for payment or delivery and the payment or delivery, as the case may be, can be made without such withholding or deduction is required to be made by reason of the Holder or the beneficial owner presentation of the Note concurrently being a shareholder of the Company for payment or of any Guarantor; ordelivery by at least one other Paying Agent;
(kvi) Any combination of items (a) through (j) above. Notwithstanding to any other provision of this Indenture, all amounts to be paid on the Notes by withholding or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections sections 1471 through 1474 of the Code (or any regulations thereunder amended or successor provisions), any regulations, rules, practices or agreements entered into pursuant thereto, official interpretations thereof) thereof or any law implementing an intergovernmental agreement between approach thereto; or
(vii) in the United States and another jurisdiction facilitating case of any combination of the implementation thereof items listed in clauses (i) through (vi) above. Nor will Additional Amounts be paid with respect to any payment or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deductiondelivery on a Note to a Holder who is a fiduciary, a “FATCA Withholding”). Neither partnership, a limited liability company or other than the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect sole beneficial owner of FATCA Withholding. The Company that payment or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (delivery to the extent received from that payment or delivery would be required by the relevant tax authorities laws of a Relevant Jurisdiction to be included in the usual course income, for tax purposes, of a beneficiary or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or settlor with respect to the Notes 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 Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after had that beneficiary, settlor, member or beneficial owner been the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), Holder.
(b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section In addition to the extentforegoing, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as each Obligor shall also pay and indemnify the case may be, will pay Holder of any Note for any present or future stamp, issue, registration, value added, court or documentary taxes taxes, or any other excise or property taxes, charges or similar levies that arise or taxes (including penalties, interest and any other reasonable expenses related thereto) which are levied by any Relevant Jurisdiction (“Transfer Taxes”) on the execution, delivery, registration or enforcement of any of the Notes, the Indenture or any other document or instrument referred to therein or the receipt of payments with respect thereto. For the avoidance of doubt, the indemnification provided in this paragraph shall not include any Transfer Taxes arising from the transfer of Notes in the United States, the Republic of France ordinary course.
(c) If any Obligor is required to make any deduction or in any jurisdiction in which a Paying Agent is located withholding from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, such Obligor shall deliver to the Trustee official tax receipts evidencing the remittance to the relevant tax authorities of the amounts so withheld or deducted.
(d) Any reference in this Indenture or the Notes in any Subsidiary Guaranteecontext to the delivery of cash or ADSs or other Reference Property upon exchange of any Note or the payment of principal of (including the Fundamental Change Repurchase Price and the Redemption Price, the Indenture if applicable) and interest on, any Note or any other documents related thereto (limitedamount payable with respect to such Note, shall be deemed to include Additional Amounts, unless the context requires otherwise, that are, were or would be payable in case respect of Taxes attributable that amount under the obligations referred to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will 4.07.
(e) The foregoing obligations shall survive any termination, defeasance termination or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinIndenture.
Appears in 1 contract
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor Issuer under or with respect to the Notes Notes, or the Subsidiary Guarantees will by Exide Parent in respect of any Partial Parent Guarantee shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) Taxes imposed or levied by or on behalf of any Taxing Authority within France, or within any other jurisdiction in which the Company or any Guarantor (including any successor entities) Issuer is then organized or resident engaged in business for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”)purposes, unless the Company Issuer or any Guarantor (or any Paying Agent) Exide Parent, as the case may be, is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authority. thereof.
(b) If the Company Issuer or any Guarantor (or any Paying Agent) Exide Parent, as the case may be, is so required to withhold or deduct any amount for or on account of Taxes imposed by a Taxing Authority within France, or levied by within any other jurisdiction in which the Issuer is organized or on behalf of a Relevant Taxing Jurisdiction engaged in business for tax purposes, from any payment made under or with respect to the Notes or any Partial Parent Guarantee, as the Subsidiary Guaranteescase may be, the Company Issuer or any such Guarantor Exide Parent will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“"Additional Amounts”") as may be necessary so that the net amount received by such Holder each holder of Notes (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder the holder and beneficial owner would have received if such Taxes had not been withheld or deducted, ; provided that no Additional Amounts will be payable with respect to any Notea payment made to a holder of Notes (an "Excluded Holder") with respect to:
(a1) surrendered by any Tax which would not have been imposed, payable or due: (i) but for the Holder existence of any present or former connection between the holder (or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by of, or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been person ultimately entitled to obtain an interest in, such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(bNotes) if any tax, assessment and France or other governmental charge jurisdiction in which the Issuer is imposed organized or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable engaged in business for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction tax purposes other than the mere purchase, holding or disposition of any Noteof, or the receipt of payments under, the Notes; (ii) if the payment could have been made by or on behalf through another paying agent without such withholding; or (iii) if the beneficial owner of, or person ultimately entitled to obtain an interest in such Notes had been the holder of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account Notes and would not be entitled to the payment of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) Additional Amounts; or (e2) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who Tax which is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”)payments of, or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company principal of, or any Guarantor will also interest on, the Notes.
(c) The Issuer shall (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company Issuer or Exide Parent will furnishmake reasonable 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 Issuer or Exide Parent, as the case may be, will furnish to the registered Holders, and unregistered holders upon request, within 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, to the Trustee, either certified copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company Issuer or any Guarantor. The Trustee will make Exide Parent, as the case may be, or, if such receipts are not obtainable, other evidence available to of such payments by the Holders upon request. Issuer or Exide Parent, as the case may be.
(d) At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees any Partial Parent Guarantee is due and payable, if the Company Issuer or any Guarantor becomes Exide Parent, as the case may be, will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)payment, the Company Issuer will deliver to each the Paying Agent Agents an Officers’ ' Certificate stating the fact that such Additional Amounts will be payable, payable and the amount amounts so payable and will set forth such other information as necessary to enable such the Paying Agent Agents to pay such Additional Amounts to the Holders holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 1 contract
Additional Amounts. (a) All payments made by or on behalf of that the Company or any Guarantor Issuer makes under or with respect to the Notes or the Subsidiary Guarantees will shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and any other liability with respect similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) Issuer is then organized or is a resident for tax purposes or from or through which the Issuer makes any payment on the Notes or by or within any department or political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) Issuer is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authorityof law. If the Company or any Guarantor (or any Paying Agent) Issuer is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesNotes, the Company or any such Guarantor will Issuer shall pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) cash (“Additional Amounts”) as may be necessary so to ensure that the net amount received by such each Holder (including the Additional Amounts) after such withholding or deduction (including withholding or deduction attributable to Additional Amounts payable hereunder) will not be less than the amount such the Holder would have received if such Taxes had not been withheld or deducted.
(b) Notwithstanding the foregoing, provided that the Issuer shall pay no Additional Amounts will be payable with respect to a Holder or beneficial owner of any Note:
(ai) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled Taxes giving rise to such Additional Amounts on surrendering such Note would not have been imposed but for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder Holder’s or beneficial owner to provide information, documents owner’s present or other evidence concerning the nationality, residence, identity or former connection with the Relevant Taxing Jurisdiction (other than a connection arising by reason of the acquisition, ownership, holding or disposition of Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under any Notes or the Indenture);
(ii) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the failure of the Holder or beneficial owner of Notes, following the Issuer’s written request addressed to the Holder, to the extent such Holder or beneficial owner which is legally entitled to do so, to comply with any certification, identification, information or other reporting requirements, whether required or imposed by a statute, treaty, regulation or administrative practice of the a Relevant Taxing Jurisdiction Jurisdiction, as a precondition to exemption from all from, or part reduction in the rate of such taxdeduction or withholding of, assessment or governmental charge;
(c) held Taxes imposed by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, (including, without limitation, such a certification that the Holder or beneficial owner being or having been a citizen or is not resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment thereinthe Relevant Taxing Jurisdiction);
(diii) on account of with respect to any estate, inheritance, gift, salesales, transfer, transfer or personal property tax or other any similar tax, assessment or other governmental chargeTaxes;
(eiv) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any if such Holder who is a fiduciary or partnership or Person other than the sole beneficial owner of such payment and the Taxes giving rise to the extent that a beneficiary or settlor or beneficial owner such Additional Amounts would not have been entitled to any Additional Amounts imposed on such payment had such beneficiary Holder been the beneficiary, partner or settlor sole beneficial owner, as the case may be, of such Note (but only if there is no material cost or expense associated with transferring such Note to such beneficiary, partner or sole beneficial owner been and no restriction on such transfer that is outside the Holdercontrol of such beneficiary, partner or sole beneficial owner);
(gv) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the presentation by the Holder of any Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(vi) with respect to any withholding or deduction that is imposed or levied on a payment to a Luxembourg resident an individual and that is required to be made pursuant to the Luxembourg European Council Directive on the taxation of savings income which was adopted by the ECOFIN Council on June 3, 2003 or any law of 23 December 2005;
implementing or complying with, or introduced in order to conform to, such directive (hthe “EU Savings Tax Directive”) when such withholding or deduction is required to be made by reason pursuant to the Agreement between the European Community and the Swiss Confederation dated of that interest being October 26, 2004 providing for measures equivalent to those laid down in the EU Savings Tax Directive (xthe “EU-Swiss Savings Tax Agreement”) paid to a bank account opened in a financial institution established inor any law or other governmental regulation implementing or complying with, or (y) paid or accrued introduced in order to a person established or domiciled inconform to, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;such agreement; and
(ivii) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason any combination of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) listed above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(bThe Issuer shall (A) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction of Taxes required by applicable law and (B) remit the full amount of Taxes so deducted or withheld to the relevant authority Taxing Authority in accordance with all applicable lawlaws. The Company will furnishIssuer shall make reasonable best efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes. The Issuer shall provide to the Trustee, within 60 days a reasonable time after the date the payment of any Taxes is so deducted or withheld are due pursuant to applicable law, to the Trustee, copies either a certified copy of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make or, if such evidence tax receipts are not reasonably available to the Holders upon request. Issuer, such other documentation that provides reasonable evidence of such payment by the Issuer.
(c) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes Issuer shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment datethereafter), the Company will Issuer shall deliver to each the Trustee and Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, payable and the amount amounts so payable and will set setting forth such other information as is necessary to enable such Trustee and Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. The Issuer shall promptly publish a notice in accordance with Section 13.02 stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuer, shall pay any present or future stamp, issue, registration, court documentation, excise or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the execution, issue, registration or delivery of the Notes or any other document or instrument referred to thereunder and any such taxes, charges or duties imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes and/or any other such document or instrument.
(d) The foregoing provisions shall survive any termination, defeasance or discharge of the indenture and shall apply mutatis mutandis to any jurisdiction in which any Surviving Entity (as defined in Section 5.01(b)(i)) is organized or resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein or any jurisdiction from or through which payment is made by such Surviving Entity.
(e) Whenever in this the Indenture there is mentionedor the Notes refer to, in any context, (a) the payment of principal (and principal, premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on under or with respect to any of the Notes or the Subsidiary GuaranteesNote, such mention is reference shall be deemed to include mention of the payment of Additional Amounts provided for in this section or indemnification payments as described hereunder, to the extent, that, extent that in such context, context Additional Amounts or indemnification payments are, were or would be payable in respect thereofthereof pursuant to Section 4.12 of the Indenture. The Company or a GuarantorIssuer shall indemnify and hold harmless the Holders and, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement upon written request of any Holder, reimburse such Holder for the amount of (i) any Taxes levied or imposed by a Relevant Taxing Jurisdiction and payable by such Holder in connection with payments made under or with respect to the NotesNotes held by such Holder; and (ii) any Taxes levied or imposed with respect to any reimbursement under the foregoing clause (i) or this clause (ii), any Subsidiary Guarantee, so that the Indenture or any other documents related thereto (limited, in case of net amount received by such Holder after such reimbursement shall not be less than the net amount such Holder would have received if the Taxes attributable giving rise to the receipt of payments theretoreimbursement described in clauses (i) and/or (ii) had not been imposed, provided, however, that the indemnification obligation provided for in this paragraph (g) shall not extend to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations for which the eligible Holder of the Company Notes would not have been eligible to receive payment of Additional Amounts hereunder or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which extent such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinHolder received Additional Amounts with respect to such payments.
Appears in 1 contract
Samples: Indenture (Digicel Group LTD)
Additional Amounts. 3.6.1 All payments made by or on behalf account of any obligation of the Company or any Guarantor Issuer under or with respect to the TCPL Sub Notes or the Subsidiary Guarantees will – Series 2022-A shall be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company Government of Canada or any Guarantor (including any successor entities) is then organized province or resident for tax purposes or any political subdivision territory thereof or by any authority or agency therein or any jurisdiction by or through which payment is made thereof having power to tax (eachcollectively, a “Relevant Taxing Jurisdiction”"Canadian Taxes"), unless or, in the Company or any Guarantor (or any Paying Agent) event that a Successor Entity that is required to withhold or deduct Taxes organized under the laws of a jurisdiction other than the Relevant Taxing Jurisdiction laws of Canada or any province or territory thereof is substituted for the Issuer pursuant to Article 8 of the Original Indenture, by or on behalf of the government of such successor jurisdiction or any subdivision thereof or by any authority or agency therein or thereof having power to tax.
3.6.2 For so long as the interpretation or administration thereof by Trust is the relevant taxing authority. If Holder of TCPL Sub Notes – Series 2022-A, if the Company or any Guarantor (or any Paying Agent) Trust is so required to withhold or deduct any amount for or on account of Canadian Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Trust Notes or the Subsidiary Guarantees- Series 2022-A, the Company or any such Guarantor will Issuer shall pay to each Holder of the Notes that are outstanding on the date of the required payment, as additional interest such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“"Additional Amounts”") as may be necessary so that the Trust may provide a net amount received by such Holder to each holder of Trust Notes – Series 2022-A (including the Additional Amounts) after such withholding or deduction will shall not be less than the amount such Holder holder of Trust Notes – Series 2022-A would have received if such Canadian Taxes had not been withheld or deducted; provided, provided however, that no Additional Amounts will shall be payable to the Trust with respect to any Note:
(a) surrendered by the Holder or the a payment made to a holder of Trust Notes – Series 2022-A in respect of a beneficial owner thereof of Trust Notes Series 2022-A (i) with which the Trust does not deal at arm's length (for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf purposes of the relevant Holder Income Tax Act (Canada)) at the time the amount is paid or payable, (ii) where the beneficial owner on payment is in respect of a debt or prior other obligation to pay an amount to a person with whom the payor is not dealing at arm's length for the purposes of the Income Tax Act (Canada), (iii) which is subject to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld Canadian Taxes by reason of the failure of such holder of Trust Notes – Series 2022-A to comply by the Holder orwith any certification, if differentidentification, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents documentation or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which reporting requirement if compliance is required or imposed by a statutelaw, treatyregulation, regulation or administrative practice of the Relevant Taxing Jurisdiction or an applicable treaty as a precondition to exemption from from, or a reduction in, the rate of deduction or withholding of, such Canadian Taxes, (iv) where all or part any portion of the amount paid to such taxholder of Trust Notes – Series 2022-A is deemed to be a dividend paid to such holder of Trust Notes – Series 2022-A pursuant to subsection 214(16) of the Income Tax Act (Canada), assessment or governmental charge;
(cv) held by or on behalf of a Holder or the beneficial owner who which is liable for subject to such Canadian Taxes in respect of such Note by reason of having some connection its carrying on business in or being connected with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company Canada or any Guarantor in respect province or territory thereof or any Subsidiary Guarantee, (including, without limitation, such Holder or beneficial owner by being or having been a citizen national, domiciliary or resident thereof resident, or being treated as a resident, of, or having been physically present or engaged in a trade or business therein or having had a permanent establishment therein;
in, Canada or any province or territory thereof) otherwise than by the mere acquisition, holding or disposition of Trust Notes – Series 2022-A or the receipt of payments or enforcement of rights thereunder, (dvi) on account in respect of any applicable Canadian Taxes that are payable other than by withholding from payments under or with respect to the Trust Notes – Series 2022-A (other than taxes payable pursuant to Regulation 803 of the Income Tax Act (Canada) or any similar successor provision), (vii) in respect of any estate, inheritance, gift, sale, transfer, personal property property, excise or other similar taxapplicable Canadian Taxes, assessment or other governmental charge;
(eviii) except if the applicable taxes would not have been imposed but for the presentation of such Trust Note – Series 2022-A (in cases in which presentation is required) more than 30 days after the case later of the winding up date on which the relevant payment became due and payable pursuant to the terms thereof or was made or duly provided for (except to the extent such holder of Trust Notes – Series 2022-A would have been entitled to such Additional Amounts had such Trust Note – Series 2022-A been presented on the Company or any Guarantor, any Note surrendered for payment in the Republic last day of France;
(f) as a result of any combination of (asuch 30-day period), (b), (c), (dix) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment applicable Canadian Taxes to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to such Canadian Taxes result from the presentation of any Additional Amounts had such beneficiary or settlor or beneficial owner been Trust Notes – Series 2022-A for payment (where presentation is required for payment) and the Holder;
(g) payment can be made without such withholding or deduction is imposed or levied on a by the presentation of the Trust Notes – Series 2022-A for payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being at least one other paying agent, (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of for any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding taxes imposed or required pursuant to an agreement described in Section 1471(b) Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “"Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code ") (or any amended or successor version of such sections) ("FATCA"), any regulations thereunder or other official interpretations thereofguidance thereunder, any agreement entered into pursuant to Section 1471(b)(1) or an of the Code, any intergovernmental agreement entered into between a non-U.S. jurisdiction and the United States and another jurisdiction facilitating the implementation thereof (in connection with FATCA or any fiscal law, regulation or regulatory legislation, rules other official guidance enacted in any jurisdiction implementing FATCA or practices implementing such an intergovernmental agreement(xi) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholdingany combination of applicable taxes referred to in the preceding clauses (i) through (x). The Company or any Guarantor will also Trust shall make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with as and when required under applicable law. The Company will furnish, within 60 days after .
3.6.3 If a holder of Trust Notes – Series 2022-A has received a refund or credit for any Canadian Taxes with respect to which the date the payment of any Taxes is due Issuer has paid Additional Amounts pursuant to applicable lawthis Section 3.6, and such holder has paid over such refund to the TrusteeTrust, copies of tax receipts the Trust shall pay over such refund to the Issuer (but only to the extent received from of such Additional Amounts), net of all out-of-pocket expenses of such holder, together with any interest paid by the relevant tax authorities authority in the usual course or as generally provided) evidencing that respect of such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay refund.
3.6.4 If Additional Amounts with respect are required to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)under this Section 3.6 as a result of a Tax Event, the Company will deliver Issuer may elect to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary redeem outstanding TCPL Sub Notes – Series 2022-A pursuant to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein4.3.
Appears in 1 contract
Additional Amounts. All Any payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees Securities will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (“Taxes”) imposed or levied by or on behalf of the Government of Canada or of any jurisdiction in which the Company province or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision territory thereof or by any authority or agency therein or any jurisdiction by or through which payment is made thereof having power to tax (each, a “Relevant Taxing Jurisdiction”hereinafter "Taxes"), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authoritythereof. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesSecurities, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“"Additional Amounts”") as may be necessary necessary, so that the net amount received by such each Holder of Securities (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, provided however, that no Additional Amounts will be payable with respect to any Note:
a payment made to a Holder (aan "Excluded Holder") surrendered by (i) with which the Holder or Company does not deal at arm's length (within the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf meaning of the relevant Holder Income Tax Act (Canada)) at the time of making such payment, or the beneficial owner on or prior (ii) which is subject to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder Taxes by reason of its being connected with Canada or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment province or other governmental charge is imposed or withheld territory thereof otherwise than solely by reason of the failure to comply Holder's activity in connection with purchasing the Securities, by the Holder or, if different, the beneficial owner (ayant-droit) mere holding of the Note with a request addressed to such Holder Securities or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made thereunder. The Company will, upon written request of any Holder (other than an Excluded Holder), reimburse such Holder, for the amount of (i) any Taxes so levied or imposed and paid by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment payments made under or with respect to the Notes;
Securities and (jii) when any Taxes so levied or imposed with respect to any reimbursement under the foregoing clause (i), but excluding any such withholding or deduction is required to Taxes on such Holder's net income so that the net amount received by such Holder after such reimbursement will not be made by reason of less than the net amount the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid would have received if Taxes on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has reimbursement had not been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon requestimposed. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Securities is due and payable, if the Company or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)payment, the Company will deliver to each Paying Agent the Trustee an Officers’ ' Certificate stating the fact that such Additional Amounts will be payable, payable and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and or premium, if any), (b) purchase prices in connection with a purchase of the NotesRedemption Price, (c) interest or (d) any other amount payable on under or with respect to any of the Notes or the Subsidiary GuaranteesSecurity, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.52
Appears in 1 contract
Additional Amounts. All After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by or a non-U.S. Payor on behalf of the Company or any Guarantor under or with respect to the Notes or any guarantee of the Subsidiary Guarantees Notes will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (including without limitationcollectively, penalties, interest and any other liability with respect thereto) (“Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of of:
(1) any jurisdiction in which (other than the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes United States or any political subdivision or governmental authority thereof or therein or any jurisdiction by having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(each2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), unless the Company or will at any Guarantor (or any Paying Agent) is time be required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment payments made under or with respect to the Notes or any guarantee of the Subsidiary GuaranteesNotes, including payments of principal, redemption price, interest or premium, if any, the Company or any such Guarantor non-U.S. Payor will pay to each Holder of the Notes that are outstanding on the date of the required payment, (together with such payments) such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by such the Holder (including the Additional Amounts) after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amount such Holder amounts that would have been received if in respect of such Taxes had not been withheld payments on the Notes or deductedthe guarantees of the Notes in the absence of such withholding or deduction; provided, provided however, that no such Additional Amounts will be payable with respect to any Notefor or on account of:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) any Taxes that would not have been so imposed or levied but for the date on which such payment first became due and (2) if the full amount payable has not been received by existence of any present or on behalf of former connection between the relevant Holder (or the beneficial owner on between a fiduciary, settlor, beneficiary, partner, member or prior to such due dateshareholder of, or possessor of power over, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder orrelevant Holder, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder is an estate, nominee, trust, partnership, limited liability company or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof; Table of Contents
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or beneficial owner any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by a statutethe applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all from, or part reduction in the rate of deduction or withholding of, any such tax, assessment or governmental chargeTaxes);
(c3) held any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or the beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is liable substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for Taxes in respect payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such Note by reason of having some connection with payment is given to the Relevant Taxing Jurisdiction other than Holders), except to the mere purchase, holding or disposition of any Note, or extent that the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in such Person would have been entitled to Additional Amounts on presenting the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of on any combination of (a), (b), (c), (d) date during such 30-day period or (ey) or with respect to any payment made by or on behalf of where, had the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of the Note been the Holder of the Note, such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any payment of Additional Amounts had such beneficiary by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required cause to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is any required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The Company non-U.S. Payor will furnish, within 60 days after the date use reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed deducted or withheld in a from each relevant taxing authority of each Relevant Taxing Jurisdiction that imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not excluded under clauses (a) through (k) above). The obligations of obtainable, such non-U.S. Payor will provide the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction Trustee and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinHolders with other reasonable evidence.
Appears in 1 contract
Samples: Indenture (Broadcom Inc.)
Additional Amounts. (a) All payments made by or on behalf of the Company Issuer or any Guarantor of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or the Subsidiary Guarantees will any Note Guarantee shall be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxTaxes unless the withholding or deduction of such Taxes is then required by law. If the Issuer, duty, levy, impost, assessment any Guarantor or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction in which the Company Issuer or any Guarantor (including any successor entities) is then or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction by from or through which any payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a Relevant Taxing Jurisdiction from “Tax Jurisdiction”) in respect of any payment made payments under or with respect to the Notes or the Subsidiary Guaranteesany Note Guarantee, including, without limitation, payments of principal, Redemption Price, purchase price, interest or premium, the Company Issuer or any such Guarantor will the relevant Guarantor, as applicable, shall pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by such each Holder (including the Additional Amounts) after such withholding or deduction will not be less than equal the amount such Holder respective amounts that would have been received if by each Holder in respect of such Taxes had not been withheld payments in the absence of such withholding or deducteddeduction; provided, provided however, that no Additional Amounts will shall be payable with respect to any Noteto:
(ai) surrendered by any Taxes, to the Holder extent such Taxes would not have been imposed but for the holder or the beneficial owner thereof for payment of principal more than 30 days after the later Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of a power over, the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder orowner, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such relevant Holder or beneficial owner to provide informationis an estate, documents trust, nominee, partnership, limited liability company or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(ccorporation) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being national of, or having been present or incorporated, engaged in a trade or business therein in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had a permanent establishment thereinany other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, such Note Guarantee or this Indenture, or the receipt of payments in respect of such Note or Note Guarantee;
(dii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on account the last day of such 30 day period);
(iii) any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental chargeTaxes;
(eiv) except in any Taxes payable other than by deduction or withholding from payments under, or with respect to, the case of the winding up of the Company Notes or any Guarantor, any Note surrendered for payment in the Republic of FranceGuarantee;
(fv) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the Holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the Holder at least 30 days before any such withholding or deduction would be imposed, 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 result precondition to exemption from, or reduction in the rate of any combination of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (aincluding, 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;
(b)vi) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a Holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(c), (dvii) or (e) any Taxes imposed on or with respect to any payment made by the Issuer or on behalf any of the Company or any Guarantor in respect Guarantors to the Holder of any Note or Subsidiary Guarantee to any the Notes if such 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 or beneficial owner such Taxes would not have been entitled to any Additional Amounts imposed on such payments had such beneficiary or settlor or Holder been the sole beneficial owner been the Holderof such Note;
(gviii) such withholding any Taxes imposed by the United States, any state thereof or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law District of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inColumbia, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State any subdivision thereof or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of thereof, including any U.S. federal withholding taxes and any Taxes which that are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to current Sections 1471 through 1474 of the Code or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any regulations thereunder related law or official interpretations thereofadministrative practices or procedures) implementing the foregoing or an intergovernmental agreement between any agreements entered into pursuant to current Section 1471(b)(1) of the United States and another jurisdiction facilitating the implementation thereof Code (or any fiscal amended or regulatory legislationsuccessor version described above); or
(ix) any combination of clauses (i) through (viii) above. In addition to the foregoing, rules the Issuer and the Guarantors will also pay and indemnify the holder for any present or practices implementing such an intergovernmental agreementfuture stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, this Indenture, any Note Guarantee or any other document referred to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Notes or any Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments or that are imposed on or result from a sale or other transfer or disposition of a Note by a Holder or a beneficial owner, to any such withholding Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (i) through (iii) or deduction(v) through (ix) above or any combination thereof), save in each case for any such taxes, charges or levies which arise or are increased as a “FATCA Withholding”). Neither result of any document effecting the Company nor registration, issue or delivery of any other person, including of the notes either being signed or executed in the United Kingdom or being brought into the United Kingdom.
(b) If the Issuer or any Guarantor, as the case may be, becomes aware that it will be required obligated to pay any Additional Amounts with respect to any payment under or with respect to the Notes or any Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 respect of FATCA Withholdingwhich case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Company Officer’s Certificates must also set forth any other information reasonably necessary to enable the Paying Agents to pay Additional Amounts to Holders on the relevant payment date. The Issuer or any the relevant Guarantor will also provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, shall make such withholding or deduction all withholdings and deductions (within the time period) required by law and shall remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Company will furnishIssuer or the relevant Guarantor shall 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 shall furnish to the Trustee (or to a Holder of the Notes upon request), within 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant 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 applicable lawobtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee, copies of tax receipts ) by such entity.
(to the extent received from the relevant tax authorities in the usual course or as generally providedd) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture or the Notes there is mentioned, in any context, (a) the payment of amounts based upon the principal (and premium, if any), (b) purchase prices in connection with a purchase amount of the NotesNotes or of principal, (c) interest or (d) of any other amount payable on under, or with respect to to, any of the Notes or the Subsidiary Guaranteesany Note Guarantee, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto .
(limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (ae) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will This Section 4.12 shall survive any termination, defeasance or satisfaction and discharge of this Indenture or Indenture, any transfer by a holder Holder or beneficial owner of its notesNotes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (or any Guarantor Guarantor) is incorporated, engaged in business for tax purposes business, organized or resident for tax purposes purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person makes any payment on the Notes and any department or and, in each case, any political subdivision thereof or therein.
Appears in 1 contract
Additional Amounts. All payments made by or on behalf of the Company or any Guarantor under or with respect to this Note under the Notes Indenture or the Subsidiary Guarantees will pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (“Taxes”) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the Company or any Guarantor (including any successor entities) payor is then organized or otherwise considered to be a resident or engaged in business for tax purposes purposes, or any political subdivision or governmental authority thereof or therein or any jurisdiction by or through which payment is made having the power to tax (each, each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Company Issuer, relevant Guarantor or any Guarantor (or any Paying Agent) other applicable withholding agent is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authoritygovernment authority or agency. If the Company Issuer, a Guarantor or any other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guaranteesany Note Guarantee, the Company Issuer or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required paymentGuarantor, such additional amounts (in the form of (x) in as the case of PIK Interestmay be, additional PIK Interest and will be required to pay such amount (y) in all other cases, cash) (such amount the “Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such Holder holder would have received if such Taxes had not been withheld or deducted; provided, provided however, that no Additional Amounts will be payable with respect to payments made to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except holder to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is Taxes are imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droiti) of the Note with a request addressed to such Holder holder or beneficial owner being considered to provide information, documents be or other evidence concerning the nationality, residence, identity or connection to have been connected with the a Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statuteJurisdiction, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than by the mere purchaseacquisition, ownership, holding or disposition of any this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments made by or on behalf in respect of the Company this Note or any Guarantor in respect thereof or any Subsidiary Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, such Holder providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who controlled foreign corporation that is a fiduciary or partnership or other than related person within the sole beneficial owner meaning of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b864(d)(4) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”)) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or otherwise any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to Sections 1471 through 1474 of the Code FATCA, (or v) with respect to German tax residents any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislationTax withheld by a German custodian, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be who is required to pay any Additional Amounts deduct the withholding tax from such interest payments, provided that this Note is held in respect of FATCA Withholdingcustody with such German custodian. The Company Issuer or any Guarantor (as applicable) required to withhold any Taxes will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Company Issuer or any Guarantor (as applicable) will furnish, within 60 days after the date the payment of any Taxes is due pursuant use commercially reasonable efforts to applicable law, to the Trustee, obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the extent received from the relevant tax authorities Trustee. Wherever in the usual course or as generally provided) evidencing that such payment has been made by the Company Indenture, this Note or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture Note Guarantee there is are mentioned, in any context, (a1) the payment of principal (and premium, if any)principal, (b2) purchase prices in connection with a purchase of Notes under the NotesIndenture or this Note, (c3) interest or (d4) any other amount payable on or with respect to this Note or any of the Notes or the Subsidiary GuaranteesNote Guarantee, such mention is reference shall be deemed to include mention of the payment of Additional Amounts provided for in as described under this section heading to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a GuarantorGuarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as the case may be, applicable) will pay any present to the Trustee or future stampthe Paying Agent such Additional Amounts and, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which if paid to a Paying Agent is located from other than the initial issue or registration Trustee, shall promptly provide the Trustee with documentation evidencing the payment of the Notes or on the enforcement such Additional Amounts. Copies of any payments with respect such documentation shall be made available to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above)holders upon request. The foregoing obligations of the Company or any Guarantor described in this Section 4.19 Paragraph 2 will survive any termination, defeasance or satisfaction and discharge of the Indenture. References in this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person Paragraph 2 to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or shall apply to any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinsuccessor(s) thereto.
Appears in 1 contract
Additional Amounts. All payments made (a) The Company hereby agrees that any amounts to be paid by or on behalf of the Company or any Guarantor under or with respect to the Notes each Security shall be paid without deduction or the Subsidiary Guarantees will be made free withholding for any and clear of all present and without withholding or deduction for or on account of any present or future taxtaxes, dutylevies, levy, impost, assessment imposts or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) charges (“Taxes”) imposed whatsoever imposed, assessed, levied or levied collected by or on behalf for the account of any jurisdiction in which (i)(x) the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes Republic of Panama or any political subdivision or taxing authority thereof or therein (y) the jurisdiction of incorporation (other than the United States or any political subdivision or taxing authority thereof) of a successor corporation to the Company pursuant to Section 8.1, to the extent that such Taxes first become applicable as a result of the successor corporation becoming the obligor on the Securities, or (ii) any jurisdiction by (other than the United States or any political subdivision or taxing authority thereof) from or through which payment any amount is made paid by the Company hereunder or where it is resident or maintains a place of business or permanent establishment (each, each jurisdiction described in clauses (i) and (ii) above is referred to herein as a “Relevant Taxing Jurisdiction”), unless the Company withholding or any Guarantor (or any Paying Agent) deduction of such Tax is required to withhold or deduct Taxes under the compelled by laws of the Relevant Republic of Panama or any other applicable Taxing Jurisdiction Jurisdiction. If any deduction or withholding of any Taxes (other than Excluded Taxes, as defined below) is ever required by the interpretation or administration thereof by the relevant taxing authority. If the Company Republic of Panama or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant other Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesJurisdiction, the Company shall (subject to compliance by the Holder or beneficial owner of any such Guarantor will Security with any relevant administrative requirements) pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that required to make the net amount received by amounts paid to the Holder of such Holder (including Security or the Additional Amounts) Trustee pursuant to the terms of the Indenture or the Securities, after such withholding deduction or deduction will not be less than withholding, equal to the amount amounts of principal, premium, if any, interest, if any, and sinking fund or analogous payments, if any, to which 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 any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment Trustee is entitled. However, the Company shall not be required to pay Additional Amounts in respect of principal more than 30 days after the later of following Taxes (“Excluded Taxes”):
(1) the date on which such payment first became due and (2) if the full amount payable has not been received by any present or on behalf future Taxes imposed, assessed, levied or collected as a result of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of a Security (i) being organized under the laws of, or otherwise being or having been a domiciliary, national or resident of, (ii) being engaged or having been engaged in a trade or business in, (iii) having or having had its principal office located in, (iv) maintaining or having maintained a permanent establishment in, (v) being or having been physically present in, or (vi) otherwise having or having had some connection (other than the connection arising from holding or owning such Security, or collecting principal and interest, if any, on, or the enforcement of, such Security) with the Republic of Panama or any other applicable Taxing Jurisdiction;
(2) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, such Security was presented more than thirty days after the date such payment became due or was provided for, whichever is later;
(3) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the failure to provide informationmake any certification, documents identification or other evidence report concerning the nationality, residence, identity or connection with the Relevant Republic of Panama or any other applicable Taxing Jurisdiction of such the Holder or beneficial owner which is required of such Security or imposed by claim for relief or exemption, if making such a statutecertification, treatyidentification, regulation other report or administrative practice claim is, under the laws, rules or regulations of the Relevant Taxing Jurisdiction as any such jurisdiction, a precondition condition to relief or exemption from all or part of such tax, assessment or governmental chargeTaxes;
(c4) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment taxes or other governmental charge;duty; or
(e5) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of clauses (a1), (b2), (c)3) and (4) above; provided further, (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor that no such Additional Amounts shall be payable in respect of any Note or Subsidiary Guarantee to Security held by (x) any Holder who or beneficial owner that is a fiduciary or partnership or other than not the sole beneficial owner of such payment Security, or that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, but only to the extent that a beneficiary or settlor with respect to the fiduciary or a beneficial owner owner, partner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to any such Additional Amounts had such beneficiary the beneficiary, settlor, beneficial owner, partner or settlor or beneficial owner member been the Holder;
(g) direct holder of such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inSecurity, or (y) paid or accrued to any Holder that is not a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A resident of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect United States to the Notes;
(j) when extent that, had such withholding or deduction is required to be made by reason Holder been a resident of the Holder United States and eligible (taking into account any applicable limitation on benefits article or similar provision) for the beneficial owner of the Note concurrently being a shareholder of the Company or benefit of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement double taxation treaty between the United States and another jurisdiction facilitating the implementation thereof applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security, such Holder would not have been entitled to such Additional Amounts, or (z) any Holder that is a resident of the United States but that is not eligible for the benefit of any double taxation treaty between the United States, and the applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security (but only to the extent the amount of such deduction or any fiscal or regulatory legislation, rules or practices implementing withholding exceeds that which would have been required had such an intergovernmental agreement) (any such withholding or deduction, Holder of a “FATCA Withholding”Security been so eligible and made all relevant claims). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will successor to the Company, as the case may be, shall indemnify and hold harmless each Holder of a Security and upon written request reimburse each Holder for the amount of (i) any Taxes levied or imposed by the Republic of Panama or any other applicable Taxing Jurisdiction and paid by such Holder of any Security (other than Excluded Taxes) as a result of payments made with respect to such Security, (ii) any liability (including penalties, interest and expenses) arising from or in connection with the levying or imposing of any Taxes (other than Excluded Taxes) by the Republic of Panama or any other applicable Taxing Jurisdiction with respect to any Security, and (iii) any Taxes (other than Excluded Taxes) levied or imposed by the Republic of Panama or any other applicable Taxing Jurisdiction with respect to payment of Additional Amounts or any reimbursement pursuant to this sentence, in each case, to the extent not otherwise reimbursed by the payment of any Additional Amount and not excluded from the requirement to pay Additional Amounts, as described above. The Company or any successor to the Company, as the case may be, shall also (i) make such withholding or deduction to the extent required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishor any successor to the Company, as the case may be, shall furnish the Trustee within 60 30 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available successor to the Holders upon requestCompany, as the case may be, or other evidence of such payment reasonably satisfactory to the Trustee. It is understood, however, that the Trustee is under no obligation to request such certified copies of tax receipts evidencing the payment. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Securities is due and payable, if the Company or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)payments, the Company will deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and stating the amount amounts so payable and will set setting forth such other information as may be necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes Securities on the payment date. Whenever in this Indenture or any Security there is mentioned, in any context, (a) the payment of principal (and the principal, premium, if any), (b) purchase prices or interest, or sinking fund or analogous payment, if any, in connection with a purchase respect of the Notes, (c) such Security or overdue principal or overdue interest or (d) any other amount payable on overdue sinking fund or with respect to any of the Notes or the Subsidiary Guaranteesanalogous payment, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section herein to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as thereof pursuant to the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic provisions of France or this Section and express mention thereof in any jurisdiction provisions hereof shall not be construed as excluding Additional Amounts in which a Paying Agent those provisions hereof where such express mention is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto not made (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveif applicable). The obligations of the Company or (and any Guarantor described in successor corporation to the Company pursuant to Section 8.1) under this Section 4.19 will 10.5 shall survive any termination, defeasance or satisfaction and discharge the termination of this Indenture and the payment of all amounts under or with respect to the Securities.
(b) Each Holder of a Security, by acceptance of such Security, agrees that, with reasonable promptness after receiving written notice from the Company to the effect that such Holder is eligible for a refund in respect of Taxes actually paid by the Company pursuant to this Section 10.5, such Holder will sign and deliver, as reasonably directed by the Company, any transfer form provided to such Holder by the Company to enable such Holder to obtain a refund in respect of such Taxes; and if such Holder thereafter receives such refund in respect of such Taxes, such Holder will promptly pay such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority). If a Holder applies for a refund of such Taxes prior to a request by the Company to apply for such a refund, the Holder will, upon receipt of a request by the Company to apply for, or to turn over the proceeds of, any such refund, pay any such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority), promptly upon receipt of such refund. The Company shall pay all reasonable out-of-pocket expenses incurred by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction Holder in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which connection with obtaining such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinrefund.”
Appears in 1 contract
Additional Amounts. All payments made by or on behalf The Company will pay to Holders of the Company Securities such Additional Amounts as may be necessary in order that every net payment of principal, premium, if any, Change of Control Purchase Price, Redemption Price or interest in respect of any Guarantor under Securities, after deduction or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge imposed upon or as a result of such payment by (including without limitationi) Bermuda or Ireland or any political subdivision or governmental authority thereof or therein having power to tax, penalties(ii) any jurisdiction from or through which payment is made, interest and or any political subdivision or governmental authority thereof or therein having the power to tax, or (iii) any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or otherwise considered to be a resident for tax purposes purposes, or any political subdivision or governmental authority thereof or therein or any jurisdiction by or through which payment is made (eachhaving the power to tax, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount provided for in such Holder would have received if such Taxes had not been withheld or deductedSecurities to be then due and payable; provided, provided however, that no the foregoing obligation to pay Additional Amounts will be payable not apply
(a) with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof Security presented for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by by, or on behalf of, a Holder who is liable for such taxes, duties, assessments or other governmental charges in respect of such Securities by reason of such Holder being a resident, domiciliary or national of, or engaging in business or maintaining a permanent establishment or being physically present in, a Relevant Taxing Jurisdiction, or any political subdivision or taxing authority thereof or therein, or other- wise having some connection with a Relevant Taxing Jurisdiction, or any political subdivision or taxing authority thereof or therein, other than the relevant Holder or the beneficial owner on or prior to mere holding of such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day periodSecurities;
(b) if to any tax, assessment or other governmental charge is which would not have been imposed or withheld by reason of but for the failure fact that such Holder (i) presented its Securities for payment more than 30 days after the Relevant Date, except to comply by the extent that the Holder or, would have been entitled to Additional Amounts if different, it had presented such Securities for payment on any day within the beneficial owner 30-day period or (ayant-droitii) of the Note with a request addressed to presented such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered Securities for payment in the Republic of France;
(f) as a result of any combination of (a)Relevant Taxing Jurisdiction, (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of unless such payment to the extent that a beneficiary or settlor or beneficial owner would Securities could not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holderpresented for payment elsewhere;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 1 contract
Samples: Indenture (Elan Corp PLC)
Additional Amounts. All payments made (a) The Company hereby agrees that any amounts to be paid by or on behalf of the Company or any Guarantor under or with respect to the Notes each Security shall be paid without deduction or the Subsidiary Guarantees will be made free withholding for any and clear of all present and without withholding or deduction for or on account of any present or future taxtaxes, dutylevies, levy, impost, assessment imposts or other governmental charge (including without limitationcharges whatsoever imposed, penaltiesassessed, interest and any other liability with respect thereto) (“Taxes”) imposed levied or levied collected by or on behalf for the account of any jurisdiction in which (i)(x) the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes Republic of Panama or any political subdivision or taxing authority thereof or therein (y) the jurisdiction of incorporation (other than the United States or any political subdivision or taxing authority thereof) of a successor entity to the Company pursuant to Section 8.1, to the extent that such taxes, levies, imposts or other governmental charges first become applicable as a result of such successor entity becoming the obligor on the Securities, or (ii) any other jurisdiction by (other than the United States or any political subdivision or taxing authority thereof) from or through which payment any amount is made paid by the Company hereunder or where it is resident or maintains a place of business or permanent establishment (each, each jurisdiction described in Clauses (i) and (ii) above is referred to herein as a “Relevant Taxing Jurisdiction” and such taxes, levies, imposts or other governmental charges are referred to as “Taxes”), unless the Company withholding or deduction of such Tax is compelled by laws of the Republic of Panama or any Guarantor other applicable Taxing Jurisdiction. If any deduction or withholding of any Taxes (other than Excluded Taxes, as defined below) is ever required by the Republic of Panama or any other Taxing Jurisdiction, the Company shall (subject to compliance by the Holder or beneficial owner of each Security with any applicable administrative requirements) pay such additional amounts (“Additional Amounts”) required to make the net amounts paid to each Holder of such Security or the Trustee pursuant to the terms of this Indenture or the Securities, after such deduction or withholding, equal to the amounts of principal, premium, if any, interest, if any, and sinking fund or analogous payments, if any, to which such Holder or the Trustee is entitled. However, the Company shall not be required to pay Additional Amounts in respect of the following Taxes (“Excluded Taxes”):
(1) any present or future Taxes imposed, assessed, levied or collected as a result of the Holder or beneficial owner of a Security (i) being organized under the laws of, or otherwise being or having been a domiciliary, national or resident of, (ii) being engaged or having been engaged in a trade or business in, (iii) having or having had its principal office located in, (iv) maintaining or having maintained a permanent establishment in, (v) being or having been physically present in, or (vi) otherwise having or having had some connection (other than the connection arising solely from holding or owning such Security, or collecting principal and interest, if any, on, or the enforcement of, such Security) with the Republic of Panama or any other applicable Taxing Jurisdiction;
(2) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, the relevant Security was presented more than thirty days after the date relevant payment is first made available for payment to the Holder or beneficial owner;
(3) any present or future Taxes imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any Paying Agentrelated law or administrative practices or procedures) is required implementing the foregoing or any agreements entered into pursuant to withhold or deduct Taxes under the laws current Section 1471(b)(1) of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor Code (or any Paying Agentamended or successor version described above);
(4) is so required to withhold any present or deduct future Taxes payable other than by deduction or withholding from payments under, or with respect to, any amount for Security ;
(5) any present or on account of future Taxes imposed in connection with a Security presented for payment (where presentation is permitted or levied required for payment) by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such 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 any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of the Security to provide informationthe extent such Taxes could have been avoided by presenting the relevant Security to, documents or otherwise accepting payment from, another Paying Agent;
(6) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the failure to make any certification, identification or other evidence report concerning the nationality, residence, identity or connection with the Relevant Republic of Panama or any other applicable Taxing Jurisdiction of such the Holder or beneficial owner which is required of such Security or imposed by claim for relief or exemption, if making such a statutecertification, treatyidentification, regulation other report or administrative practice claim is, under the laws, rules or regulations of the Relevant Taxing Jurisdiction as any such jurisdiction, a precondition condition to relief or exemption from all or part of such tax, assessment or governmental charge;Taxes;
(c7) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment Tax or other governmental charge;duty; or
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of 8) any combination of Clauses (a)1) through (7) above; provided further, (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor that no such Additional Amounts shall be payable in respect of any Note or Subsidiary Guarantee to Security held by (x) any Holder who or beneficial owner that is a fiduciary or partnership or other than not the sole beneficial owner of such payment Security, or that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, but only to the extent that a beneficiary or settlor with respect to the fiduciary or a beneficial owner owner, partner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to any such Additional Amounts had such beneficiary the beneficiary, settlor, beneficial owner, partner or settlor or beneficial owner member been the Holder;
(g) direct holder of such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inSecurity, or (y) paid or accrued to any Holder that is not a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A resident of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect United States to the Notes;
(j) when extent that, had such withholding or deduction is required to be made by reason Holder been a resident of the Holder United States and eligible (taking into account any applicable limitation on benefits article or similar provision) for the beneficial owner of the Note concurrently being a shareholder of the Company or benefit of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement double taxation treaty between the United States and another jurisdiction facilitating the implementation thereof applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security, such Holder would not have been entitled to such Additional Amounts, or (z) any Holder that is a resident of the United States but that is not eligible for the benefit of any double taxation treaty between the United States and the applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security (but only to the extent the amount of such deduction or any fiscal or regulatory legislation, rules or practices implementing withholding exceeds that which would have been required had such an intergovernmental agreement) (any such withholding or deduction, Holder of a “FATCA Withholding”Security been so eligible and made all relevant claims). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will successor to the Company, as the case may be, agrees to indemnify and hold harmless each Holder of a Security and upon written request reimburse each Holder for the amount of (i) any Taxes levied or imposed and paid by such Holder of a Security (other than Excluded Taxes) as a result of payments made with respect to such Security, (ii) any liability (including penalties, interest and expenses) arising therefrom with respect thereto, and (iii) any Taxes (other than Excluded Taxes) with respect to payment of Additional Amounts or any reimbursement pursuant to this sentence, in each case, to the extent not otherwise reimbursed by the payment of any Additional Amount and not excluded from the requirement to pay Additional Amounts, as described above. The Company or any successor to the Company, as the case may be, shall also (i) make such withholding or deduction to the extent required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishor any successor to the Company, as the case may be, shall furnish the Trustee within 60 30 days after the date the payment of any such Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to evidencing the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available successor to the Holders upon requestCompany, as the case may be, or other evidence of such payment reasonably satisfactory to the Trustee. It is understood, however, that the Trustee is under no obligation to request such certified copies of tax receipts evidencing the payment. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Securities is due and payable, if the Company or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)those payments, the Company will shall deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and stating the amount so amounts that will be payable and will set setting forth such any other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes Securities on the payment date. Whenever in this Indenture or any Security there is mentioned, in any context, (a) the payment of principal (and the principal, premium, if any), (b) purchase prices or interest, or sinking fund or analogous payment, if any, in connection with a purchase respect of the Notes, (c) such Security or overdue principal or overdue interest or (d) any other amount payable on overdue sinking fund or with respect to any of the Notes or the Subsidiary Guaranteesanalogous payment, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section herein to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as thereof pursuant to the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic provisions of France or this Section and express mention thereof in any jurisdiction provisions hereof shall not be construed as excluding Additional Amounts in which a Paying Agent those provisions hereof where such express mention is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto not made (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveif applicable). The obligations of the Company or (and any Guarantor described in successor entity to the Company pursuant to Section 8.1) under this Section 4.19 will 10.5 shall survive any termination, defeasance or satisfaction and discharge the termination of this Indenture and the payment of all amounts under or with respect to the Securities.
(b) Each Holder of a Security, by acceptance of such Security, agrees that, with reasonable promptness after receiving written notice from the Company to the effect that such Xxxxxx is eligible for a refund in respect of Taxes actually paid by the Company pursuant to this Section 10.5, such Holder will sign and deliver, as reasonably directed by the Company, any transfer form provided to such Holder by the Company to enable such Holder to obtain a refund in respect of such Taxes; and if such Holder thereafter receives such refund in respect of such Taxes, such Holder will promptly pay such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority). If a Holder applies for a refund of such Taxes prior to a request by the Company to apply for such a refund, the Holder will, upon receipt of a request by the Company to apply for, or to turn over the proceeds of, any such refund, pay any such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority), promptly upon receipt of such refund. The Company shall pay all reasonable out-of- pocket expenses incurred by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction Holder in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which connection with obtaining such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinrefund.
Appears in 1 contract
Samples: Indenture (Carnival PLC)
Additional Amounts. All payments made by or on behalf the Issuer in respect of this Note and the Indenture and by the Guarantor in respect of the Company or any Guarantor under or with respect to Guarantee and the Notes or the Subsidiary Guarantees Indenture will be made free and clear of and without deduction or withholding or deduction for or on account of any present or future taxtaxes, dutyduties, levyassessments, impost, assessment fees or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) charges (“Taxes”) imposed or levied by or on behalf of Luxembourg, the Russian Federation, any jurisdiction in from or through which the Company or any Guarantor (including any successor entities) a payment is then organized or resident for tax purposes made, or any political subdivision or taxing authority thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law. If the Company or any Guarantor (or any Paying Agent) Issuer is required to withhold make any withholding or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount deduction for or on account of any Taxes from any payment made under or with respect to this Note, or if the Guarantor is required to make any withholding or deduction for or on account of any Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesGuarantee, the Company or any such Guarantor Issuer (or, in respect of the Guarantee, the Guarantor) will pay as additional interest to each the Holder of the Notes that are outstanding on the date of the required payment, this Note such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that every net payment made by the net amount received Issuer on this Note or by such Holder (including the Additional Amounts) Guarantor on the Guarantee after such deduction or withholding for or deduction on account of any Taxes will not be less than the amount such Holder would have received if such Taxes had then due and payable on this Note or the Guarantee. The foregoing obligation to pay Additional Amounts, however, will not been withheld or deducted, provided that no Additional Amounts will be payable with respect apply to any (i) Taxes that would not have been imposed but for the existence of any present or former connection between the Holder of this Note and any Taxing Jurisdiction other than the mere receipt of such payment or the ownership or holding of this Note:
; (aii) surrendered Taxes that would not have been imposed but for the presentation by the Holder or the beneficial owner thereof of this Note for payment of principal on a date more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on whichwhich payment thereof is duly provided for, the full amount having been so received, notice whichever occurs later; (iii) Taxes required to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed be deducted or withheld by reason any Paying Agent from a payment on this 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 failure Holder to comply by with the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a Issuer’s written request addressed to such the Holder or beneficial owner at least 60 days prior to the relevant payment to provide informationinformation with respect to any reasonable certification, documents documentation, information or other evidence reporting requirement concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of the Holder of such Holder or beneficial owner which is Note; (v) Taxes imposed on a payment to an individual that are required or imposed by a statute, treaty, regulation or administrative practice to be made pursuant to any European Union Directive on the taxation of savings implementing the conclusion of the Relevant Taxing Jurisdiction as a precondition to exemption from all ECOFIN Council meeting of 26-27 November 2000 or part of such tax, assessment any law implementing or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Notecomplying with, or the receipt of payments made by or on behalf of the Company or any Guarantor introduced in respect thereof or any Subsidiary Guarantee, including, without limitationorder to conform to, such Holder Directive; or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(dvi) on account of any estate, inheritance, gift, sale, transfer, personal property sale or other similar excise tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 1 contract
Samples: Indenture (Mobile Telesystems Ojsc)
Additional Amounts. All (a) The Issuer, the Guarantors and each Paying Agent will make all payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made Securities and each Guarantee free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or on behalf of (i) Ireland, the Netherlands or the United States, or with respect to each of the foregoing any political subdivision or any authority or agency therein or thereof having power to tax, (ii) any other jurisdiction in which the Company or any Guarantor (including any successor entities) Issuer is then organized or otherwise resident for tax purposes or any political subdivision thereof or any authority or agency therein or thereof having the power to tax (and, in the case of the Issuer that is treated as a transparent or pass-through entity for purposes of the tax law of a jurisdiction in which any of its owners, members or beneficial owners is organized or otherwise resident for tax purposes, any such jurisdiction or any political subdivision or any authority or agency therein or thereof having the power to tax), (iii) any jurisdiction by from or through which payment on any Security or any Guarantee is made made, or any political subdivision or any authority or agency therein or thereof having the power to tax or (eachiv) any jurisdiction in which a Guarantor that actually makes a payment on any Security or any Guarantee is organized or otherwise resident for tax purposes, or any political subdivision or any authority or agency therein or thereof having the power to tax (and, in the case of a Guarantor that is treated as a transparent or pass-through entity for purposes of the tax law of a jurisdiction in which any of its owners, members or beneficial owners is organized or otherwise resident for tax purposes, any such jurisdiction or any political subdivision or any authority or agency therein or thereof having the power to tax) (each a “Relevant Taxing Jurisdiction”), unless the Company Issuer, a Guarantor or any Guarantor (or any a Paying Agent) Agent is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law applicable to such Person or by the interpretation or administration thereof by the relevant taxing authority. thereof.
(b) If the Company Issuer, a Guarantor or any Guarantor (or any a Paying Agent) Agent is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes any Security or the Subsidiary Guaranteesany Guarantee, the Company or any such Guarantor Issuer and the Guarantors will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder Holders (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder Holders would have received if such Taxes had not been withheld or deducted; provided, provided however, that no the foregoing obligation to pay Additional Amounts will be payable with respect does not apply to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) any Taxes that would not have been so imposed but for the date existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, the relevant Holder, if the relevant Holder is an estate, nominee, trust or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on which a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction, but other than a connection arising from the acquisition, ownership or holding of such Security or the receipt of any payment first became due and in respect thereof); (2) if any estate, inheritance, gift, sales, value added, excise, transfer, personal property tax or similar tax, assessment or governmental charge; (3) any Taxes imposed as a result of the full amount payable has not been received by or on behalf failure of the relevant Holder or the beneficial owner on or prior of the Securities to such due date, comply with a timely request in writing of the date on which, the full amount having been so received, notice Issuer addressed to that effect shall have been given to the Holders except to the extent that the Holder or beneficial owner, as the beneficial owner case may be (such request being made at a time that would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to enable such Holder or beneficial owner acting reasonably to comply with that request), to provide information, documents information concerning such Holder’s or other evidence concerning the beneficial owner’s nationality, residence, identity or connection with the any Relevant Taxing Jurisdiction of Jurisdiction, if and to the extent that due and timely compliance with such Holder or beneficial owner which is required or imposed by a statute, treatyrequest under applicable law, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition would have reduced or eliminated such Taxes with respect to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
owner, as applicable; (d4) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or Taxes that are payable other than the sole beneficial owner of such payment to the extent that a beneficiary by deduction or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
any Security or any Guarantee; (j5) when such withholding any Taxes that are required to be deducted or deduction is withheld from a payment to an individual and that are required to be made by reason pursuant to Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on taxation of savings income or any law implementing or complying with, or introduced in order to conform to such Directives; (6) any Taxes withheld or deducted pursuant to Sections 1471 through 1474 of the Internal Revenue Code (or any amended or successor version of such Sections), any U.S. Treasury regulations promulgated thereunder, any official interpretations thereof or any agreements (including any intergovernmental agreement or any law implementing any such agreement) entered into in connection with the implementation thereof; or (7) any United States Taxes withheld or deducted from a payment to any Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement Securities that is described in Section 1471(bSections 871(h)(3)(B) or 881(c)(3) of the U.S. Internal Revenue Code of 1986, as amended amended; nor will the Issuer or Guarantors pay Additional Amounts (x) if the “Code”)payment could have been made without such deduction or withholding if the Holder had presented the Security for payment (where presentation is required for payment) within 30 days after the date on which such payment on such Security became due and payable or the date on which payment thereof is duly provided for, whichever is later, (y) with respect to any payment of principal of (or premium, if any, on) or interest on such Security to any Holder who is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Security, or otherwise imposed pursuant to Sections 1471 through 1474 (z) in respect of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any Security where such withholding or deductiondeduction is imposed as a result of any combination of clauses (1), a “FATCA Withholding”(2). Neither , (3), (4), (5), (6), (7), (x), (y) and (z) of this paragraph.
(c) The Issuer and the Company nor Guarantors will make any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority Relevant Taxing Jurisdiction in accordance with applicable law. The Company Issuer and Guarantors will furnishprovide the Trustee, within 60 days after for the date benefit of the Holders, with official receipts evidencing the payment of any the Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay which Additional Amounts with respect are paid. If, notwithstanding the efforts of the Issuer and Guarantors to obtain such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)receipts, the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United Statessame are not obtainable, the Republic of France or in any jurisdiction in which a Paying Agent is located from Issuer and Guarantors will provide the initial issue or registration of the Notes or on the enforcement of any payments Trustee with respect to the Notesother evidence. In no event, any Subsidiary Guaranteehowever, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 shall the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or be required to disclose any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereininformation it reasonably deems to be confidential.
Appears in 1 contract
Samples: Junior Subordinated Indenture (AerCap Global Aviation Trust)
Additional Amounts. All payments made by or on behalf of (a) If the Company or any Subsidiary Guarantor under (or with respect any successor of either), as applicable, is required by law or by the interpretation or administration thereof by the relevant government authority or agency to the Notes withhold or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction deduct any amount for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (“Taxes”) imposed or levied by or on behalf of the Cayman Islands, Liberia, Cyprus or any other jurisdiction in which the Company or any Guarantor (including any successor entities) of its Subsidiary Guarantors is then organized incorporated or resident for tax purposes or by any political subdivision thereof authority or agency therein or thereof having power to tax (or the jurisdiction of incorporation of any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless successor of the Company or any Guarantor Subsidiary Guarantor) (or any Paying Agenthereinafter "Taxes") is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes Securities or any Subsidiary Guarantee, as applicable, unless the Company or the Subsidiary GuaranteesGuarantors, as applicable, are required to withhold or deduct Taxes by law or by interpretation or administration thereof by the relevant government authority or agency, the Company or such Subsidiary Guarantor (or any such Guarantor will successor of either), as applicable shall pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“"Additional Amounts”") as may be necessary so that the net amount received by such each Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such the Holder would have received if such Taxes had not been withheld or deducted; PROVIDED, provided HOWEVER, that no Additional Amounts will shall be payable with respect to payments made to a Holder (an "Excluded Holder") in respect of a beneficial owner (i) which is subject to such Taxes by reason of its being connected with the Cayman Islands, Liberia, Cyprus or any Note:
(a) surrendered jurisdiction in which the Company or any of its Subsidiary Guarantors is incorporated or resident for tax purposes otherwise than by the Holder mere holding of Securities or the beneficial owner thereof receipt of payments thereunder (or under the related Subsidiary Guarantee), (ii) which presents any Security for payment of principal more than 30 60 days after the later of (1x) the date on which such payment first became due and (2y) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner Trustee on or prior to such due date, the date on which, the full amount payable having been so received, notice to that effect shall have been given to the Holders by the Trustee, except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering presenting such Note Security for payment on any day during the applicable 3060-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason including the last day of the failure applicable 60-day period, (iii) which failed to duly and timely comply by the Holder orwith a reasonable, if different, the beneficial owner (ayant-droit) timely request of the Note with a request addressed to such Holder or beneficial owner Company to provide information, documents or other evidence concerning the Holder's nationality, residence, entitlement to treaty benefits, identity or connection with the Relevant Taxing Jurisdiction of such Holder Cayman Islands, Liberia, Cyprus or beneficial owner any jurisdiction in which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof of its Subsidiary Guarantors is incorporated or resident for tax purposes or any Subsidiary Guaranteepolitical subdivision or authority thereof, including, without limitation, if and to the extent that due and timely compliance with such request would have reduced or eliminated any Taxes as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
but for this clause (diii), (iv) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar taxTax, assessment (v) which is a fiduciary, a partnership or other governmental charge;
(e) except in not the case beneficial owner of any payment on a Security or the winding up Subsidiary Guarantees, if and to the extent that any beneficiary or settlor of the Company or any Guarantorsuch fiduciary, any Note surrendered for payment partner in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or such partnership or other than the sole beneficial owner of such payment to (as the extent that a beneficiary or settlor or beneficial owner case may be) would not have been entitled to any receive Additional Amounts had with respect to such beneficiary or settlor payment if such beneficiary, settlor, partner or beneficial owner had been the Holder;
(g) Holder of such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, Security or (yvi) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A any combination of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision foregoing numbered clauses of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholdingproviso. The Company or the Subsidiary Guarantors (or any Guarantor will also successor of either), as applicable, shall make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. .
(b) The Company will furnishor the Subsidiary Guarantors (or any successor of either), as applicable, shall furnish to the Trustee, within 60 30 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or the Subsidiary Guarantors (or any Guarantorsuccessor of either), as applicable, in such form as provided in the normal course by the taxing authority imposing such Taxes and in such form as is legally sufficient to obtain foreign tax credits for United States Federal income tax purposes. The Trustee will shall make such evidence available to the Holders upon request. At least 30 days prior to The Company or the Subsidiary Guarantors (or any successor of either), as applicable, shall upon written request of each date on which Holder (other than an Excluded Holder), reimburse each such Holder for the amount of (i) any payment Taxes so levied or imposed and paid by such Holder as a result of payments made under or with respect to the Notes Securities or the Subsidiary Guarantees is due Guarantees, as applicable, and payable, if the Company or (ii) any Guarantor becomes obligated to pay Additional Amounts Taxes imposed with respect to any such payment reimbursement under the immediately preceding clause (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment datei), but excluding any such Taxes on such Holder's net income, so that the Company net amount received by such Holder after such reimbursement will deliver to each Paying Agent an Officers’ Certificate stating not be less than the fact that net amount the Holder would have received if Taxes (other than such Additional Amounts will be payable, and the amount so payable and will set forth Taxes on such other information as necessary to enable Holder's net income) on such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. reimbursement had not been imposed.
(c) Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any)principal, (b) purchase prices in connection with a purchase of the NotesSecurities, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary GuaranteesSecurities, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable pay able in respect thereof. .
(d) The Company or a Guarantor, as the case may be, will Subsidiary Guarantors (or any successor of either) 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 the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue execution, delivery, enforcement or registration of the Notes Securities or on any other document or instrument in relation thereto, or the enforcement receipt of any payments with respect to the NotesSecurities or the Subsidiary Guarantees, excluding such taxes, charges or similar levies imposed by any jurisdiction outside of the Cayman Islands, Liberia, Cyprus or any jurisdiction in which the Company or any of the Subsidiary GuaranteeGuarantors is incorporated or resident for tax purposes, the Indenture or jurisdiction of incorporation of any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations successor of the Company or any Guarantor described jurisdiction in this Section 4.19 will which a paying agent is located, and hereby indemnifies the Holders for any such taxes paid by such Holders. The foregoing obligations shall survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinIndenture.
Appears in 1 contract
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor Issuer under or with respect to the Notes or the (including any payments by a Subsidiary Guarantees will Guarantor) shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or on behalf of the Government of Canada or any province or territory thereof or by any authority or agency therein or thereof having power to tax or any other jurisdiction in which the Company Issuer or any Subsidiary Guarantor (including any successor entities) is then organized organized, or is otherwise carrying on business in, or is otherwise resident for tax purposes or any political subdivision thereof or therein purposes, or any jurisdiction by from or through which payment is made made, excluding the United States (each, each a “Relevant Taxing Jurisdiction”), ) unless the Company Issuer or any Subsidiary Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authority. thereof.
(b) If the Company Issuer or any Subsidiary Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesNotes, the Company Issuer or any such Subsidiary Guarantor will shall be required to pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder a holder or beneficial owner of Notes (including the Additional Amounts) after such withholding or deduction will shall not be less than the amount such Holder holder would have received if such Taxes including Taxes or Additional Amounts had not been withheld or deducted; provided, provided however, that no the foregoing obligation to pay Additional Amounts will be payable to a Holder (such Holder, an “Excluded Holder”) does not apply with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of to: (1) any Taxes that would not have been so imposed but for the date on which such payment first became due and (2) if the full amount payable has not been received by existence of any present or on behalf of former connection between the relevant Holder holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over the Note with a request addressed to such Holder relevant holder or beneficial owner, if the relevant holder or beneficial owner to provide informationis an estate, documents nominee, trust, partnership, limited liability company or other evidence concerning the nationality, residence, identity or connection with corporation) and the Relevant Taxing Jurisdiction (other than a connection from the mere acquisition, ownership or holding of such Holder notes or a beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder interest therein or the beneficial owner who is liable for Taxes in respect enforcement of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, rights thereunder or the receipt of payments made by or on behalf of the Company or any Guarantor payment in respect thereof or thereof); (2) Canadian withholding taxes imposed on any Subsidiary Guarantee, including, without limitation, such Holder payment made to any holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
of the Notes with which the Issuer does not deal at arm’s length (dwithin the meaning of the Income Tax Act (Canada)) on account at the time of making such payments; (3) any estate, inheritance, gift, salesales, excise, transfer, use, personal property tax or other similar tax, assessment or other governmental charge;
; (e4) except in any Taxes payable otherwise than by deduction or withholding from payments on the case Notes; (5) any Taxes imposed because the relevant holder or beneficial owner of the winding up Note fails to complete, execute and deliver any form or document to the extent applicable to such holder or beneficial owner that may be required by law or by reason of administration of such law to enable the Issuer or any Subsidiary Guarantor to make payments on the Notes without deduction or withholding for Taxes, or with deduction or withholding of a lesser amount; (6) any Taxes that would not have been imposed if the holder or beneficiary of the Company or any Guarantor, any payment had presented the Note surrendered for payment in within 30 days after the Republic date on which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the holder would have been entitled to Additional Amounts had the Note been presented on the last day of France;
such 30-day period); (f7) as a result of any combination of (a), (b), (c), (d) or (e) or Taxes that were imposed with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any a Note or Subsidiary Guarantee to any Holder holder who is a fiduciary partnership, limited liability company or partnership or any person other than the sole beneficial owner of such payment payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or limited liability company or the beneficial owner of such payment would not have been entitled to any the Additional Amounts had such beneficiary or settlor beneficiary, settlor, member or beneficial owner been the Holder;
actual holder of such Note; or (g) such withholding 8) any withholdings or deduction is deductions imposed or levied on a payment to a Luxembourg resident an individual and is that are required to be made pursuant to the Luxembourg European Union Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26 and 27, 2000 on the taxation of savings income or any law of 23 December 2005;
(h) when implementing or complying with, or introduced in order to conform to, such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inDirective, or (y9) paid or accrued to any Taxes that would not have been imposed but for a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A combination of the French Code général des impôts;foregoing.
(ic) in case of Taxes which are payable otherwise than by withholding The Issuer or deduction from a payment made under such Subsidiary Guarantor shall pay the amount withheld or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant governmental authority on a timely basis in accordance with applicable law. The Company will furnishAs soon as practicable, within 60 days after the date Issuer shall provide the Trustee with official receipts or other documentation evidencing the payment of any the Taxes is due pursuant with respect to applicable law, to which Additional Amounts are paid.
(d) If the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company Issuer or any Guarantor. The Trustee will make such evidence available Subsidiary Guarantor is or shall become obligated to pay Additional Amounts under or with respect to any payment made on any of the Holders upon request. At Notes or a Note Guarantee, at least 30 days prior to each the date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to of such payment (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payablesuch date, in which case it will shall be paid promptly thereafter and in any case before the relevant payment datethereafter), the Company will Issuer or such Subsidiary Guarantor, as the case may be, shall deliver to each Paying Agent the Trustee an Officers’ Certificate officer’s certificate stating the fact that such Additional Amounts will shall be payable, payable and the amount so payable and will set forth such other information as necessary to enable such the Paying Agent to pay such remit Additional Amounts to the Holders of the Notes holders on the relevant payment date. .
(e) Whenever in this Indenture there is mentioned, mentioned in any context, : (a1) the payment of principal principal; (and premium, if any), (b2) redemption prices or purchase prices in connection with a purchase redemption or repurchase of the Notes, ; (c3) interest interest; or (d4) any other amount payable on or with respect to any of the Notes or the Subsidiary Guaranteesany Note Guarantee, such mention is reference shall be deemed to include mention of the payment of Additional Amounts provided for in as described under this section Section 2.13 to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(f) The Company Issuer and the Subsidiary Guarantors shall indemnify a holder or beneficial owner of notes (other than an Excluded Holder) for the full amount of any Taxes (including for greater certainty, Taxes payable pursuant to Section 803 of the regulation to the Income Tax Act (Canada)) paid by such holder to a Guarantorgovernmental authority of a Relevant Taxing Jurisdiction, as on or with respect to any payment by the case may be, will Issuer or any Subsidiary Guarantor on account of failure to satisfy any obligation of the Issuer or any Subsidiary Guarantor to withhold or deduct Taxes for which the Issuer or such Subsidiary Guarantor would have been obliged to pay Additional Amounts hereunder.
(g) The Issuer 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 the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located Relevant Taxing Jurisdiction from the initial issue execution, delivery, enforcement or registration of the Notes Notes, this Indenture or on any other document or instrument in relation thereof, or the enforcement receipt of any payments with respect to the Notes, Notes (including any payments by a Subsidiary Guarantee, the Indenture or any other documents related thereto Guarantor).
(limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (ah) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will 2.13 shall survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinIndenture.
Appears in 1 contract
Additional Amounts. All payments made by or on behalf of the Company Issuer or any Guarantor under or with respect to on the Notes or the Subsidiary Guarantees Securities will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitationcharge, and any penalties, interest and any other liability or additions to tax with respect thereto) thereto (collectively, “Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) withholding of such Taxes is required to withhold by law or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the official interpretation or administration thereof by the relevant taxing authoritythereof. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect The Issuer will, subject to the Notes or the Subsidiary Guaranteesexceptions and limitations set forth below, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be are necessary so in order that the net amount of such payments received by such a Holder (including who is not a United States person for United States federal income tax purposes, after deduction by any applicable withholding agent for any present or future Taxes of any Relevant Taxing Jurisdiction, imposed by withholding with respect to the Additional Amounts) after such withholding payment by or deduction on behalf of the Issuer, will not be less than the amount such Holder that would have been received if in respect of such Taxes had not been withheld payments in the absence of such withholding or deducteddeduction; provided, provided however, that no the foregoing obligation to pay Additional Amounts will be payable with respect shall not apply:
(1) to any NoteTaxes that are imposed or withheld solely by reason of the Holder or beneficial owner, or a fiduciary, settlor, beneficiary, member or shareholder 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:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein in the United States or having or having had a permanent establishment thereinin the United States;
(b) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Securities, the receipt of payment or the enforcement of any rights under the Securities), including being or having been a citizen or resident of the United States;
(c) being or having been a foreign or domestic personal holding company, a passive foreign investment company or a controlled foreign corporation with respect to the United States or a corporation that has accumulated earnings to avoid United States federal income tax;
(d) on account being or having been a “10-percent shareholder” of the obligor under the Securities within the meaning of section 871(h)(3) of the Code or any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;successor provision; or
(e) except being or having been a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the case ordinary course of its trade or business, as described in section 881(c)(3)(A) of the winding up of the Company Code or any Guarantor, any Note surrendered for payment in the Republic of Francesuccessor provision;
(f2) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who that is a fiduciary or partnership or other than not the sole beneficial owner of such payment the Securities, or a portion thereof, or that is a fiduciary or partnership, but only to the extent that a beneficiary or settlor or with respect to the fiduciary, a beneficial owner or member of the partnership would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(3) to any Additional Amounts had such beneficiary Taxes that are imposed or settlor withheld solely by reason of the failure of the Holder or beneficial owner been to comply with certification, identification or information reporting requirements concerning the Holdernationality, residence, identity or connection with a Relevant Taxing Jurisdiction of the Holder or beneficial owner of such Securities, if compliance is required by statute or by regulation of the Relevant Taxing Jurisdiction as a precondition to a reduction in or exemption from such Taxes (including the submission of an applicable United States Internal Revenue Service Form W-8 (with any required attachments)); provided that the applicable Holder or beneficial owner would be legally eligible for such reduction or exemption upon providing the required documentation in compliance with such requirements;
(g4) such withholding or deduction is to any Taxes that are imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notespayment;
(j5) when such withholding to any estate, inheritance, gift, sales, transfer, personal property, wealth or deduction is similar tax, assessment or governmental charge;
(6) to any Taxes required to be withheld by any Paying Agent from any payment on any Security, if such payment can be made without such withholding by any other Paying Agent;
(7) to any Taxes that are imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of such Securities for payment on a date more than 30 days after the date on which such payment became due and payable, except to the extent that the Holder or the beneficial owner of thereof would have been entitled to Additional Amounts had the Note concurrently being a shareholder of the Company or of notes been presented for payment on any Guarantor; ordate during such 30 day period;
(k) Any combination of items (a) through (j) above. Notwithstanding 8) to any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding Taxes that are imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed withheld pursuant to Sections 1471 through 1474 of the Code Code, as of the Issue Date (or any regulations thereunder amended or successor provision that is substantively comparable and not materially more onerous to comply with), any U.S. Treasury Regulations promulgated thereunder, any official interpretations thereof) , any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States and another jurisdiction facilitating implementing the implementation thereof foregoing, or any agreements entered into pursuant to Section 1471(b)(1) of the Code, as of the Issue Date (or any fiscal amended or regulatory legislation, rules or practices implementing such an intergovernmental agreementsuccessor provision described above); or
(9) in the case of any combination of any items (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding1) through (8). The Company Issuer, the relevant Guarantor or any Guarantor other applicable withholding agent will also make such withholding or deduction 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 Company If the Issuer or the relevant Guarantor is the applicable withholding agent, the Issuer or the relevant Guarantor will furnish(i) use its commercially reasonable efforts to obtain tax receipts from each tax authority evidencing the payment of any Taxes so deducted or withheld and (ii) furnish to the Trustee (or to a Holder upon written request), within 60 days a reasonable time after the date the payment of any Taxes so deducted or withheld is due pursuant 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 applicable lawobtain receipts, receipts are not available, other evidence of payments (reasonably satisfactory to the Trustee) by such entity. If the Issuer or the relevant Guarantor is not the applicable withholding agent, copies of the Issuer or the relevant Guarantor will use its reasonable efforts to obtain tax receipts (or other evidence of payments from the applicable withholding agent and furnish the tax receipts or evidence of payments to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment dateTrustee. Whenever in this Indenture there is mentioned, in any context, (a) the payment of amounts based upon the principal (and premium, if any), (b) purchase prices in connection with a purchase amount of the NotesSecurities or of principal, (c) interest or (d) of any other amount payable on under, or with respect to to, any of the Notes or the Subsidiary GuaranteesSecurities, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The foregoing obligations of the Company or any Guarantor described in this Section 4.19 4.20 will survive any termination, defeasance or satisfaction and discharge of this Indenture or Indenture, any transfer by a holder Holder or beneficial owner of its notesSecurities, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes Securities and any department or any political subdivision thereof or therein.
Appears in 1 contract
Samples: Indenture (Scientific Games Corp)
Additional Amounts. All payments made by or on behalf of the Company Issuers or any Guarantor under or any successor in interest to any of the foregoing (each, a “Payor”) on or with respect to the Notes or the Subsidiary Guarantees any Guarantee will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (including without limitationcollectively, penalties, interest and any other liability with respect thereto) (“Taxes”) unless such withholding or deduction is required by law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of of:
(a) any jurisdiction in which (other than the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes United States or any political subdivision or governmental authority thereof or therein or any jurisdiction by having power to tax) from or through which payment on the Notes or any Guarantee is made by such Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(eachb) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) in which a Payor that actually makes a payment on the Notes or its Guarantee is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (a) and (b), a “Relevant Taxing Jurisdiction”), unless the Company or will at any Guarantor (or any Paying Agent) is time be required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment payments made under or with respect to the Notes or the Subsidiary Guaranteesany Guarantee, including payments of principal, redemption price, interest or premium, if any, the Company or any such Guarantor Payor will pay to each Holder of the Notes that are outstanding on the date of the required payment, (together with such payments) such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by such Holder (including the Additional Amounts) Holders or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amount such Holder amounts that would have been received if in respect of such Taxes had not been withheld payments on the Notes or deductedthe Guarantees in the absence of such withholding or deduction; provided, provided however, that no such Additional Amounts will be payable with respect to any Notefor or on account of:
(ai) surrendered by any Taxes that would not have been so imposed or levied but for the Holder existence of any present or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of former connection between the relevant Holder (or the beneficial owner on between a fiduciary, settlor, beneficiary, partner, member or prior to such due dateshareholder of, or possessor of power over, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder orrelevant noteholder, if differentsuch noteholder is an estate, the beneficial owner (ayant-droitnominee, trust, partnership, limited liability company or corporation) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or the receipt of any payment in respect thereof;
(ii) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or beneficial owner any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by a statutethe applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold all or a part of any such tax, assessment or governmental chargeTaxes);
(ciii) held any Taxes that are payable otherwise than by deduction or withholding from a payment on the Notes or any Guarantee;
(iv) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(v) any Taxes that are required to be deducted or withheld on a payment pursuant to the Directive or any law implementing, or introduced in order to conform to, the Directive;
(vi) any Taxes imposed in connection with a Note presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another paying agent in a member state of the European Union;
(vii) any Taxes payable under Sections 1471 through 1474 of the Code, as of the date of this Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements (including any intergovernmental agreements) entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements) (“FATCA”); or
(viii) any combination of the above. Such Additional Amounts will also not be payable (x) 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) within 30 days after the relevant payment was first made available for payment to the Holder or (y) where, had the beneficial owner who is liable for Taxes in respect of such the Note by reason been the Holder of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any payment of Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being any of clauses (x1) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
8) inclusive above. The Payor will (i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is make any required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant taxing authority in accordance with applicable law. The Company Payor will furnish, within 60 days after the date use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes is due pursuant to applicable law, so deducted or withheld from each relevant taxing authority imposing such Taxes and will provide such certified copies to the Trustee. If, copies notwithstanding the efforts of tax such Payor to obtain such receipts, the same are not obtainable, such Payor will provide the Trustee with other reasonable evidence. Such receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been other evidence will be made available by the Company Trustee to Holders upon written request. If any Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At Guarantee, then, at least 30 days prior to each the date on which any payment under or with respect of such payment, the Payor will deliver to the Notes or Trustee and the Subsidiary Guarantees is due Paying Agent an Officer’s Certificate stating the fact that Additional Amounts will be payable and payable, if the Company or any Guarantor becomes obligated amount so payable and such other information necessary to enable the Paying Agent to pay Additional Amounts with respect to such Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises after the 30th day less than 45 days prior to the date on which relevant payment under or with respect to the Notes or the Subsidiary Guarantees is due and payabledate, in which case it will be paid promptly thereafter the Payor shall deliver such Officer’s Certificate and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary promptly as practicable after the date that is 30 days prior to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date, but no less than five Business Days prior thereto, and otherwise in accordance with the requirements of DTC). Whenever Wherever in this Indenture Indenture, the Notes or any Guarantee there is mentionedmention of, in any context, :
(a1) the payment of principal principal;
(and premium, if any), (b2) redemption prices or purchase prices in connection with a redemption or purchase of the Notes, ;
(c3) interest or interest; or
(d4) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, any Guarantee; such mention is reference shall be deemed to include mention of the payment of Additional Amounts provided for in as described under this section heading to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, Payor will pay any present or future stamp, court or documentary taxes Taxes, or any other excise or excise, property taxes, charges or similar levies Taxes that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial issue resale, registration or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the this Indenture or any other documents related document or instrument in relation thereto (limited, in case other than a transfer of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveNotes other than the initial resale thereof). The foregoing obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer a Payor is organized or any Guarantor is incorporated, engaged in business for tax purposes or otherwise considered to be a resident for tax Tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Additional Amounts. All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impostinterest, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) ), is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor (and each Paying Agent) will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such 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 any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders by the Trustee, except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any the last day during of the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) any withholding or deduction imposed on a payment to an individual which is required to be made pursuant to any law implementing or complying with, or introduced in order to conform to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of 26–27 November 2000 on the taxation of savings income or any agreement between the European Community and any jurisdiction providing for equivalent measures;
(g) as a result of any combination of (a), (b), (c), (d), (e) or (ef) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;; or
(gh) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)payment, the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, Notes or any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or the satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinIndenture.
Appears in 1 contract
Samples: Indenture (CGG Veritas)
Additional Amounts. All payments made by or on behalf of the Company or any Guarantor Issuer and the Guarantors under or with respect to the Notes or and the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment assessment, or other governmental charge of whatever nature (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of any government or political subdivision or territory or possession of any government or authority or agency or authority therein or thereof having the power to tax (each, a “Taxing Authority”) in any jurisdiction in which the Company Issuer or any Guarantor (including any successor entitiestheir permitted successors and assigns) is then organized incorporated, engaged in business or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), ) unless the Company Issuer or any the Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by Law or by the relevant Taxing Authority’s interpretation or administration thereof by the relevant taxing authoritythereof. If the Company Issuer or any the Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesGuarantees (as the case may be), the Company Issuer or any such Guarantor the Guarantors (as the case may be) will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such each Holder of the Notes (including the Additional Amounts) after such withholding or deduction will not be less than equal to the amount such the Holder of the Notes would have received if such Taxes had not been withheld or deducted, ; provided that no Additional Amounts will be payable with respect to any Notea payment made to a Holder of the Notes (an “Excluded Holder”) to the extent:
(a1) surrendered any such Taxes would not have been imposed but for the existence of any present or former connection between such Holder of the Notes and the Relevant Taxing Jurisdiction imposing such Taxes otherwise than merely by the Holder acquisition, ownership or disposition of such Note or receiving any payment in respect thereof or the beneficial owner thereof for payment exercise or enforcement of principal more than 30 days after any rights under the later of (1) Notes or the date on which such payment first became due and Guarantees; or
(2) if the full amount payable has not been received by or on behalf such Holder of the relevant Holder Notes would not have been liable for or the beneficial owner on or prior subject to such due date, the date withholding or deduction on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to account of such Additional Amounts on surrendering such Note Taxes but for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayantmake a valid declaration of non-droit) of the Note with a request addressed to such Holder residence or beneficial owner similar claim for exemption or to provide information, documents or other evidence information concerning the nationality, residence, identity residence or connection with the Relevant Taxing Jurisdiction if:
(a) the making of such Holder declaration or beneficial owner which claim or provision of such information is required or imposed by a statute, treaty, regulation regulation, ruling or administrative practice of a Taxing Authority of the Relevant Taxing Jurisdiction as a precondition pre-condition to an exemption from all from, or part of reduction in, such tax, assessment or governmental charge;Taxes; and
(cb) held by or on behalf of a Holder or at least 60 days prior to the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for first payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or date with respect to any payment made by which the Issuer or on behalf the Guarantors shall apply this clause (2), the Issuer and the Guarantors shall have notified that Holder of the Company Notes in writing that they shall be required to provide such declaration, claim or information; or
(3) such Holder of the Notes would have been able to avoid such Taxes by presenting the relevant Note to another Paying Agent in a member state of the European Union (as constituted on the Issue Date) or in the United States; or
(4) any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner Taxes would not have been entitled to any Additional Amounts had imposed but for the presentation by the Holder of such beneficiary Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due or settlor payable or beneficial owner been the Holder;was duly provided for, whichever is later; or
(g5) where such withholding or deduction is imposed or levied on a payment to a Luxembourg resident an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the Luxembourg conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income or any law of 23 December 2005;implementing or complying with, or introduced in order to conform to, such Directive; or
(h6) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A any combination of the French Code général des impôts;
immediately preceding clauses (i1) in case of Taxes to (5) (inclusive). In addition, Additional Amounts will not be payable with respect to any estate, inheritance, gift, sales, transfer, personal property or any similar tax, assessment or other governmental charge with respect to such Notes or with respect to any Tax which are is payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed from payments of principal of, premium or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986discount, as amended (the “Code”)if any, or otherwise imposed pursuant to Sections 1471 through 1474 of interest on the Code Notes. The Issuer or the Guarantors (or as the case may be) will also (1) make any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such required withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction ; and (2) remit the full amount deducted or withheld to the relevant authority Taxing Authority in accordance with applicable lawLaw. The Company Issuer or the Guarantors (as the case may be) will furnishmake reasonable 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 Issuer or the Guarantors (as the case may be) will use reasonable efforts to furnish to the Holders of the Notes (with a copy to the Trustee), within 60 30 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable lawLaw, to the Trustee, either certified copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company Issuer or any Guarantor. The Trustee will make the Guarantors (as the case may be) or, if such receipts are not obtainable, other evidence available to of such payments by the Holders upon requestIssuer or the Guarantors (as the case may be). At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company Issuer or any Guarantor becomes obligated the Guarantors (as the case may be) will be obliged to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after payment, the 30th day prior to the date on which payment under or with respect to the Notes Issuer or the Subsidiary Guarantees is due and payable, in which Guarantors (as the case it will be paid promptly thereafter and in any case before the relevant payment date), the Company may be) will deliver to each the Trustee and the Principal Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, payable and the amount amounts so payable and will set forth such other information as necessary to enable such the Paying Agent on behalf of the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and amounts based upon the principal, premium, if any)interest or of any other amount payable under, (b) purchase prices in connection or with a purchase respect to, any of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company Issuer or a Guarantor, the Guarantors (as the case may be, ) will pay any present or future stamp, transfer, court or documentary taxes taxes, or any other excise or property taxes, charges or similar levies that which arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue original execution, delivery or registration of the Notes or on Notes, the initial resale thereof by the initial purchasers and the enforcement of the Notes, the Guarantees or the Note Security Documents following the occurrence of any payments Event of Default with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will foregoing provisions shall survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, the Notes and will apply, shall apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer or any Guarantor the Guarantor, as the case may be, is incorporatedorganized, engaged in business for tax purposes or business, resident for tax purposes purposes, or any jurisdiction from or through which such Person makes any payment otherwise subject to taxation on the Notes and any department a net income basis or any political subdivision sub-divisions or Taxing Authority or agency thereof or therein.
Appears in 1 contract
Samples: Indenture (Inmarsat Launch CO LTD)
Additional Amounts. All (a) The Guarantor shall make all payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made Guarantee free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or on behalf of (i) the United Kingdom or any political subdivision or any authority or agency therein or thereof having power to tax, (ii) any other jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or is otherwise resident for tax purposes or any political subdivision thereof or any authority or agency therein or thereof having the power to tax, or (iii) any jurisdiction by from or through which payment under or with respect to the Guarantee is made or any political subdivision or any authority or agency therein or thereof having the power to tax (each, each a “Relevant Taxing Jurisdiction”), unless the Company withholding or any Guarantor (or any Paying Agent) deduction of such Taxes is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the official interpretation or administration thereof by the relevant taxing authoritythereof. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesGuarantee, the Company or any such Guarantor will be required to pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such a Holder (including the Additional Amounts) after such withholding or deduction (including any such withholding or deduction in respect of such Additional Amounts) will not be less than the amount such Holder holder would have received if such Taxes had not been withheld or deducted; provided, provided however, that no the foregoing obligation to pay Additional Amounts will be payable with respect to any Notedoes not apply to:
(ai) surrendered any Taxes imposed by the Holder United States, or by any political subdivision or territory or possession of such jurisdiction or by any authority or agency therein or thereof having the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior power to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day periodtax;
(bii) if any taxTaxes that would not have been so imposed but for the existence of any present or former connection between the Holder, assessment or other governmental charge is imposed or withheld by reason applicable recipient of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder payment or beneficial owner to provide informationof the Notes or any payment in respect of such Notes (each, documents a “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, partnership, trust, corporation or other evidence concerning the nationality, residence, identity or connection with business entity) and the Relevant Taxing Jurisdiction of such Holder (including being a citizen or beneficial owner which is required resident or imposed by national of, or carrying on a statutebusiness or maintaining a permanent establishment in, treatyor being physically present in, regulation or administrative practice of the Relevant Taxing Jurisdiction as Jurisdiction, but excluding a precondition to exemption connection arising solely from all the ownership or part holding of such Notes or the receipt of any payment in respect of such Note or the Guarantee or the exercise or enforcement of rights under such Notes or the Guarantee);
(iii) any estate, inheritance, gift, sales, use, value added, excise, transfer, personal property tax or similar tax, assessment or governmental charge;
(civ) held any Taxes imposed as a result of the failure of the relevant holder of the Notes (a) to make a declaration of non-residence or similar claim for exemption or reduction of the applicable deduction or withholding or (b) to comply with a timely request in writing of the Company or the Guarantor (such request being made at a time that would enable such relevant holder acting reasonably to comply with that request) to provide information concerning such relevant holder’s nationality, residence, identity or connection with any Relevant Taxing Jurisdiction, in the case of (a) and (b), if and to the extent that due and timely compliance with such request under applicable law, regulation or administrative practice would have reduced or eliminated such Taxes with respect to such relevant holder;
(v) any Taxes payable by any person (other than a Person acting on behalf of the Guarantor) acting as custodian bank or collecting agent on behalf of a Holder relevant holder, or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction that are otherwise payable other than the mere purchase, holding by deduction or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to on the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any GuarantorGuarantee; or
(kvi) Any combination of items (a) any Taxes withheld or deducted pursuant to Sections 1471 through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf 1474 of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 any comparable or successor version of the Code (such Sections, any U.S. Treasury regulations promulgated thereunder, any official interpretations thereof or any regulations thereunder agreements or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof treaties (or including any fiscal or regulatory legislation, rules or practices law implementing such an intergovernmental agreement) (any such withholding agreement or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally providedtreaty) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices entered into in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect implementation thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 1 contract
Samples: First Supplemental Indenture (Ferguson Enterprises Inc. /DE/)
Additional Amounts. All payments made by If, as a result of any change in or on behalf amendment to the laws (or any regulations or rulings promulgated thereunder) of the Company United States or of any Guarantor under political subdivision or with respect to taxing authority thereof or therein affecting tax after the Notes settlement date, NT III or the Subsidiary Guarantees will Guarantor would be made free and clear required to deduct or withhold from any payment on a Note of and without withholding or deduction amounts for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes United States or any political subdivision or taxing authority thereof or therein therein, NT III or any jurisdiction by or through which payment is made (eachthe Guarantor, a “Relevant Taxing Jurisdiction”)as the case maybe, unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect will, subject to the Notes or the Subsidiary Guaranteeslimitations and exceptions set out below, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required paymenta Holder, who is a United States Alien, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that every net payment of interest with respect to such Note after deduction or withholding for or on account of any such tax, assessment or other governmental charge imposed upon such Holder, or by reason of the net amount received making of such payment, by such Holder (including the Additional Amounts) after such withholding United States or deduction any political subdivision or taxing authority thereof or therein, will not be less than the amount provided for in such Holder would have received if such Taxes had not been withheld or deductedNote. For greater certainty, provided that no Additional Amounts will Amount shall be payable by the Issuer or the Guarantor in respect of taxes imposed by any jurisdiction other than the United States or any political subdivision or tax authority thereof or therein affecting tax. However, NT III or the Guarantor, in the case of payments under the Guarantee, will not be required to make any payment of Additional Amounts to any such holder for or on account of: Guarantor, as the case maybe, will, subject to the limitations and exceptions set out below, pay to a Holder, who is a United States Alien, such additional amounts (the “Additional Amounts”) as may be necessary so that every net payment of interest with respect to any Note:
(a) surrendered by the Holder such Note after deduction or the beneficial owner thereof withholding for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf account of the relevant Holder or the beneficial owner on or prior to any such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed upon such Holder, or withheld by reason of the failure to comply making of such payment, by the Holder orUnited States or any political subdivision or taxing authority thereof or therein, if differentwill not be less than the amount provided for in such Note. For greater certainty, no Additional Amount shall be payable by the beneficial owner (ayant-droit) Issuer or the Guarantor in respect of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or taxes imposed by a statuteany jurisdiction other than the United States or any political subdivision or tax authority thereof or therein affecting tax. However, treatyNT III or the Guarantor, regulation in the case of payments under the Guarantee, will not be required to make any payment of Additional Amounts to any such holder for or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of on account of: ● any such tax, assessment or other governmental charge;
charge which would not have been so imposed but for the existence of any present or former connection between such holder (c) held by or on behalf of between a Holder fiduciary, settlor, beneficiary, member or the beneficial owner who is liable for Taxes in respect shareholder of such Note by reason of having some connection with holder, if such holder is an estate, a trust, a partnership or a corporation) and the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary GuaranteeUnited States, including, without limitation, such Holder holder (or beneficial owner 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 a trade or business therein or present therein, or having had a permanent establishment therein;
(d) on account of ; ● any estate, inheritance, gift, salesales, transfer, transfer or personal property tax or any similar tax, assessment or governmental charge; ● any tax, assessment or other similar governmental charge imposed by reason of such holder’s past or present status, such as a personal holding company or foreign personal holding company or controlled foreign corporation or passive foreign investment company with respect to the United States or as a corporation which accumulates earnings to avoid United States federal income tax or as a private foundation or other tax-exempt organization; ● any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments on or in respect of any Note; ● any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information or other reporting requirements concerning the nationality, residence or identity of the holder or beneficial owner of such Note if such compliance is required by statute or by regulation of the United States or of any political subdivision or taxing authority thereof or therein as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(e) except in ; ● any tax, assessment or other governmental charge imposed by reason of such holder’s past or present status as the case actual or constructive owner of 10 per cent or more of the winding up total combined voting power of all classes of stock entitled to vote of NT III, or the Guarantor, or as a direct or indirect subsidiary of NT III, or the Guarantor or as a bank receiving interest described in Section 881(c)(3)(A) of the Company U.S. Internal Revenue Code; or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of ● any combination of (a), (b), (c), (d) or (e) or the foregoing items; nor shall Additional Amounts be paid with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any a Note or Subsidiary Guarantee to any Holder a United States Alien who is a fiduciary or partnership or other than the sole beneficial owner of such payment (taking into account the conduit financing rules of Treasury Regulation Section 1.881-3) to the extent that such payment would be required by the laws of the United States (or any political subdivision thereof) to be included in the income, for tax purposes, of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to any the Additional Amounts had such beneficiary or settlor beneficiary, settlor, member or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A holder of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinNote.
Appears in 1 contract
Samples: Agency Agreement (Kimco Realty Corp)
Additional Amounts. All payments made (a) The Company hereby agrees that any amounts to be paid by or on behalf of the Company or any Guarantor under or with respect to the Notes each Security shall be paid without deduction or the Subsidiary Guarantees will be made free withholding for any and clear of all present and without withholding or deduction for or on account of any present or future taxtaxes, dutylevies, levy, impost, assessment imposts or other governmental charge (including without limitationcharges whatsoever imposed, penaltiesassessed, interest and any other liability with respect thereto) (“Taxes”) imposed levied or levied collected by or on behalf for the account of any jurisdiction in which (i)(x) the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes Republic of Panama or any political subdivision or taxing authority thereof or therein (y) the jurisdiction of incorporation (other than the United States or any political subdivision or taxing authority thereof) of a successor entity to the Company pursuant to Section 8.1, to the extent that such taxes, levies, imposts or other governmental charges first become applicable as a result of such successor entity becoming the obligor on the Securities, or (ii) any other jurisdiction by (other than the United States or any political subdivision or taxing authority thereof) from or through which payment any amount is made paid by the Company hereunder or where it is resident or maintains a place of business or permanent establishment (each, each jurisdiction described in Clauses (i) and (ii) above is referred to herein as a “Relevant Taxing Jurisdiction” and such taxes, levies, imposts or other governmental charges are referred to as “Taxes”), unless the Company withholding or deduction of such Tax is compelled by laws of the Republic of Panama or any Guarantor other applicable Taxing Jurisdiction. If any deduction or withholding of any Taxes (other than Excluded Taxes, as defined below) is ever required by the Republic of Panama or any other Taxing Jurisdiction, the Company shall (subject to compliance by the Holder or beneficial owner of each Security with any applicable administrative requirements) pay such additional amounts (“Additional Amounts”) required to make the net amounts paid to each Holder of such Security or the Trustee pursuant to the terms of this Indenture or the Securities, after such deduction or withholding, equal to the amounts of principal, premium, if any, interest, if any, and sinking fund or analogous payments, if any, to which such Holder or the Trustee is entitled. However, the Company shall not be required to pay Additional Amounts in respect of the following Taxes (“Excluded Taxes”):
(1) any present or future Taxes imposed, assessed, levied or collected as a result of the Holder or beneficial owner of a Security (i) being organized under the laws of, or otherwise being or having been a domiciliary, national or resident of, (ii) being engaged or having been engaged in a trade or business in, (iii) having or having had its principal office located in, (iv) maintaining or having maintained a permanent establishment in, (v) being or having been physically present in, or (vi) otherwise having or having had some connection (other than the connection arising solely from holding or owning such Security, or collecting principal and interest, if any, on, or the enforcement of, such Security) with the Republic of Panama or any other applicable Taxing Jurisdiction;
(2) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, the relevant Security was presented more than thirty days after the date the relevant payment is first made available for payment to the Holder or beneficial owner;
(3) any present or future Taxes imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any Paying Agentrelated law or administrative practices or procedures) is required implementing the foregoing or any agreements entered into pursuant to withhold or deduct Taxes under the laws current Section 1471(b)(1) of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor Code (or any Paying Agentamended or successor version described above);
(4) is so required to withhold any present or deduct future Taxes payable other than by deduction or withholding from payments under, or with respect to, any amount for Security;
(5) any present or on account of future Taxes imposed in connection with a Security presented for payment (where presentation is permitted or levied required for payment) by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such 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 any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of the Security to provide informationthe extent such Taxes could have been avoided by presenting the relevant Security to, documents or otherwise accepting payment from, another Paying Agent;
(6) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the failure to make any certification, identification or other evidence report concerning the nationality, residence, identity or connection with the Relevant Republic of Panama or any other applicable Taxing Jurisdiction of such the Holder or beneficial owner which is required of such Security or imposed by claim for relief or exemption, if making such a statutecertification, treatyidentification, regulation other report or administrative practice claim is, under the laws, rules or regulations of the Relevant Taxing Jurisdiction as any such jurisdiction, a precondition condition to relief or exemption from all or part of such tax, assessment or governmental charge;Taxes;
(c7) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment Tax or other governmental charge;duty; or
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of 8) any combination of Clauses (a)1) through (7) above; provided further, (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor that no such Additional Amounts shall be payable in respect of any Note or Subsidiary Guarantee to Security held by (x) any Holder who or beneficial owner that is a fiduciary or partnership or other than not the sole beneficial owner of such payment Security, or that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, but only to the extent that a beneficiary or settlor with respect to the fiduciary or a beneficial owner owner, partner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to any such Additional Amounts had such beneficiary the beneficiary, settlor, beneficial owner, partner or settlor or beneficial owner member been the Holder;
(g) direct holder of such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inSecurity, or (y) paid or accrued to any Holder that is not a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A resident of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect United States to the Notes;
(j) when extent that, had such withholding or deduction is required to be made by reason Holder been a resident of the Holder United States and eligible (taking into account any applicable limitation on benefits article or similar provision) for the beneficial owner of the Note concurrently being a shareholder of the Company or benefit of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement double taxation treaty between the United States and another jurisdiction facilitating the implementation thereof applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security, such Holder would not have been entitled to such Additional Amounts, or (z) any Holder that is a resident of the United States but that is not eligible for the benefit of any double taxation treaty between the United States and the applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security (but only to the extent the amount of such deduction or any fiscal or regulatory legislation, rules or practices implementing withholding exceeds that which would have been required had such an intergovernmental agreement) (any such withholding or deduction, Holder of a “FATCA Withholding”Security been so eligible and made all relevant claims). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will successor to the Company, as the case may be, agrees to indemnify and hold harmless each Holder of a Security and upon written request reimburse each Holder for the amount of (i) any Taxes levied or imposed and paid by such Holder of a Security (other than Excluded Taxes) as a result of payments made with respect to such Security, (ii) any liability (including penalties, interest and expenses) arising therefrom with respect thereto, and (iii) any Taxes (other than Excluded Taxes) with respect to payment of Additional Amounts or any reimbursement pursuant to this sentence, in each case, to the extent not otherwise reimbursed by the payment of any Additional Amount and not excluded from the requirement to pay Additional Amounts, as described above. The Company or any successor to the Company, as the case may be, shall also (i) make such withholding or deduction to the extent required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishor any successor to the Company, as the case may be, shall furnish the Trustee within 60 30 days after the date the payment of any such Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to evidencing the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available successor to the Holders upon requestCompany, as the case may be, or other evidence of such payment reasonably satisfactory to the Trustee. It is understood, however, that the Trustee is under no obligation to request such certified copies of tax receipts evidencing the payment. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Securities is due and payable, if the Company or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)those payments, the Company will shall deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and stating the amount so amounts that will be payable and will set setting forth such any other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes Securities on the payment date. Whenever in this Indenture or any Security there is mentioned, in any context, (a) the payment of principal (and the principal, premium, if any), (b) purchase prices or interest, or sinking fund or analogous payment, if any, in connection with a purchase respect of the Notes, (c) such Security or overdue principal or overdue interest or (d) any other amount payable on overdue sinking fund or with respect to any of the Notes or the Subsidiary Guaranteesanalogous payment, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section herein to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as thereof pursuant to the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic provisions of France or this Section and express mention thereof in any jurisdiction provisions hereof shall not be construed as excluding Additional Amounts in which a Paying Agent those provisions hereof where such express mention is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto not made (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveif applicable). The obligations of the Company or (and any Guarantor described in successor entity to the Company pursuant to Section 8.1) under this Section 4.19 will 10.5 shall survive any termination, defeasance or satisfaction and discharge the termination of this Indenture and the payment of all amounts under or with respect to the Securities.
(b) Each Holder of a Security, by acceptance of such Security, agrees that, with reasonable promptness after receiving written notice from the Company to the effect that such Hxxxxx is eligible for a refund in respect of Taxes actually paid by the Company pursuant to this Section 10.5, such Holder will sign and deliver, as reasonably directed by the Company, any transfer form provided to such Holder by the Company to enable such Holder to obtain a refund in respect of such Taxes; and if such Holder thereafter receives such refund in respect of such Taxes, such Holder will promptly pay such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority). If a Holder applies for a refund of such Taxes prior to a request by the Company to apply for such a refund, the Holder will, upon receipt of a request by the Company to apply for, or to turn over the proceeds of, any such refund, pay any such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority), promptly upon receipt of such refund. The Company shall pay all reasonable out-of-pocket expenses incurred by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction Holder in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which connection with obtaining such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinrefund.
Appears in 1 contract
Samples: Indenture (Carnival PLC)
Additional Amounts. All With respect to any payments made by or on the behalf of the Company Issuer or any a Guarantor under or with in respect to of the Notes or any Guarantee of the Subsidiary Guarantees Notes, as applicable, the Issuer or such Guarantor will be made free make all payments of principal of, premium, if any, and clear interest on (whether on scheduled payment dates or upon acceleration) and the Redemption Price, if any, payable in respect of and any Note without deduction or withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (“Taxes”) imposed imposed, levied, collected, withheld or levied assessed by or on behalf of any jurisdiction in which the Company Issuer or any such Guarantor (including any successor entities) is then organized incorporated or organized, engaged in business for tax purposes or otherwise resident for tax purposes purposes, or any political subdivision thereof or taxing authority therein or and any jurisdiction by or through which any payment is made on behalf of the Issuer or any Guarantor (including the jurisdiction of any Paying Agent) (each, a “Relevant Taxing Jurisdiction”), upon or as a result of such payments, unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the official interpretation or administration thereof by thereof. To the relevant taxing authority. If the Company extent that any such Taxes are so levied or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guaranteesimposed, the Company Issuer or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount received by such each Holder (including the Additional Amounts) ), after withholding for or on account of such withholding Taxes imposed upon or deduction as a result of such payment, will not be less than the amount such Holder that would have been received if had such Taxes had taxes not been withheld imposed or deducted, provided levied; except that no such Additional Amounts will shall be payable with respect to any a payment made to a Holder or beneficial owner of a Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled such Taxes are imposed pursuant to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason Sections 1471 through 1474 of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), any current or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any future regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or , any fiscal or regulatory legislation, rules or practices implementing such adopted pursuant to an intergovernmental agreementagreement between a non-U.S. jurisdiction and the United States, with respect to the forgoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code (any “FATCA”) and/or the UK’s International Tax Compliance Regulations 2015; or
(2) to the extent that such withholding Taxes would not have been so imposed, levied or deductionassessed but for the existence of some connection between such Holder or beneficial owner of such Note and the Taxing Jurisdiction imposing such Taxes other than the mere holding or enforcement of such Note or receipt of payments thereunder; or
(3) to the extent that such Taxes would not have been so imposed, levied or assessed but for the failure of the Holders or beneficial owners of such Note to comply with a “FATCA Withholding”). Neither reasonable written request by the Company nor Issuer (or its agent) to make a valid declaration of non-residence or any other person, including any Guarantor, will be required claim or filing for exemption to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld which it is entitled (but only to the relevant authority in accordance with applicable law. The Company will furnish, within 60 extent it is legally entitled to do so); or
(4) that presents such Note for payment (where presentation is required) more than 30 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that on which such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is became due and payable, if the Company payable or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment of the Note is duly provided for and notice is given to Holders, whichever occurs later, except to the extent that the Holder or beneficial owner of such Note would have been entitled to such Additional Amounts on presenting such Note on any date during such 30-day period; or
(5) in the case of a payment made by or on behalf of the Issuer or any Guarantor organized under the laws of the United States, any state thereof or the District of Columbia, with respect to any United States withholding taxes, so long as such withholding taxes are summarized in the prospectus supplement, dated September 3, 2019, in the discussion under the caption “Certain Material Income Tax Consequences—United States Taxation” or the Issuer or such Guarantor (pursuant to Section 1.06 of the Original Indenture) provides reasonable notice regarding potential United States withholding taxes and requests Holders and beneficial owners to provide applicable U.S. tax forms; or
(6) any combination of the above. As used herein and for purposes of the Indenture and the Notes, any reference to the principal of and interest on the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premiumRedemption Price, if any), shall be deemed to include a reference to any related Additional Amounts payable in respect of such amounts. The Issuer will also pay any stamp, registration, excise or property taxes and any other similar levies (bincluding any interest and penalties related thereto) purchase prices in connection with a purchase imposed by any Taxing Jurisdiction on the execution, delivery, registration or enforcement of any of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable document or instrument referred to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 1 contract
Samples: Fourth Supplemental Indenture (Willis Towers Watson PLC)
Additional Amounts. All payments made by or on behalf of the Company or any Guarantor Issuer and the Guarantors under or with respect to the Notes or and the Subsidiary Guarantees of the Notes will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment assessment, or other governmental charge of whatever nature (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of any government or political subdivision or territory or possession of any government or authority or agency or authority therein or thereof having the power to tax (each, a “Taxing Authority”) in any jurisdiction in which the Company Issuer or any Guarantor (including any successor entitiestheir permitted successors and assigns) is then organized incorporated, engaged in business or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), ) unless the Company Issuer or any the Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by Law or by the relevant Taxing Authority’s interpretation or administration thereof by the relevant taxing authoritythereof. If the Company Issuer or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesGuarantees (as the case may be), the Company Issuer or any such Guarantor the Guarantors (as the case may be) will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such each Holder of the Notes (including the Additional Amounts) after such withholding or deduction will not be less than equal to the amount such the Holder of the Notes would have received if such Taxes had not been withheld or deducted, ; provided that no Additional Amounts will be payable with respect to any Notea payment made to a Holder of the Notes (an “Excluded Holder”) to the extent:
(a1) surrendered any such Taxes would not have been imposed but for the existence of any present or former connection between such Holder of the Notes and the Relevant Taxing Jurisdiction imposing such Taxes otherwise than merely by the Holder acquisition, ownership or disposition of such Note or receiving any payment in respect thereof or the beneficial owner thereof for payment exercise or enforcement of principal more than 30 days after any rights under the later Notes or the Guarantees of (1) the date on which such payment first became due and Notes; or
(2) if the full amount payable has not been received by or on behalf such Holder of the relevant Holder Notes would not have been liable for or the beneficial owner on or prior subject to such due date, the date withholding or deduction on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to account of such Additional Amounts on surrendering such Note Taxes but for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayantmake a valid declaration of non-droit) of the Note with a request addressed to such Holder residence or beneficial owner similar claim for exemption or to provide information, documents or other evidence information concerning the nationality, residence, identity residence or connection with the Relevant Taxing Jurisdiction if:
(a) the making of such Holder declaration or beneficial owner which claim or provision of such information is required or imposed by a statute, treaty, regulation regulation, ruling or administrative practice of a Taxing Authority of the Relevant Taxing Jurisdiction as a precondition pre-condition to an exemption from all from, or part of reduction in, such tax, assessment or governmental charge;Taxes; and
(cb) held by or on behalf of a Holder or at least 60 days prior to the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for first payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or date with respect to any payment made by which the Issuer or on behalf the Guarantors shall apply this clause (2), the Issuer and the Parent Guarantor shall have notified that Holder of the Company Notes in writing that they shall be required to provide such declaration, claim or information; or
(3) such Holder of the Notes would have been able to avoid such Taxes by presenting the relevant Note to another Paying Agent in a member state of the European Union (as constituted on the Issue Date) or in the United States; or
(4) any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner Taxes would not have been entitled to any Additional Amounts had imposed but for the presentation by the Holder of such beneficiary Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due or settlor payable or beneficial owner been the Holder;was duly provided for, whichever is later; or
(g5) where such withholding or deduction is imposed or levied on a payment to a Luxembourg resident an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the Luxembourg conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income or any law of 23 December 2005;implementing or complying with, or introduced in order to conform to, such Directive; or
(h6) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A any combination of the French Code général des impôts;
immediately preceding clauses (i1) in case of Taxes to (5) (inclusive). In addition, Additional Amounts will not be payable with respect to any estate, inheritance, gift, sales, transfer, personal property or any similar tax, assessment or other governmental charge with respect to such Notes or with respect to any Tax which are is payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed from payments of principal of, premium or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986discount, as amended (the “Code”)if any, or otherwise imposed pursuant to Sections 1471 through 1474 of interest on the Code Notes. The Issuer or the Guarantors (or as the case may be) will also (1) make any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such required withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction ; and (2) remit the full amount deducted or withheld to the relevant authority Taxing Authority in accordance with applicable lawLaw. The Company Issuer or the Guarantors (as the case may be) will furnishmake reasonable 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 Issuer or the Guarantors (as the case may be) will use reasonable efforts to furnish to the Holders of the Notes (with a copy to the Trustee), within 60 30 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable lawLaw, to the Trustee, either certified copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company Issuer or any Guarantor. The Trustee will make the Guarantors (as the case may be) or, if such receipts are not obtainable, other evidence available to of such payments by the Holders upon requestIssuer or the Guarantors (as the case may be). At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company Issuer or any Guarantor becomes obligated the Guarantors (as the case may be) will be obliged to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after payment, the 30th day prior to the date on which payment under or with respect to the Notes Issuer or the Subsidiary Guarantees is due and payable, in which Guarantors (as the case it will be paid promptly thereafter and in any case before the relevant payment date), the Company may be) will deliver to each the Trustee and the Principal Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, payable and the amount amounts so payable and will set forth such other information as necessary to enable such the Paying Agent on behalf of the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and amounts based upon the principal, premium, if any)interest or of any other amount payable under, (b) purchase prices in connection or with a purchase respect to, any of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as Issuer and the case may be, Guarantors will pay and indemnify the Holder against any present or future stamp, stamp duty reserve, transfer, court or documentary taxes taxes, or any other excise or property taxes, charges or similar levies that which arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue original execution, delivery or registration of the Notes, the initial resale thereof by the initial purchasers, any transfer of Definitive Registered Notes or on issued as a result of and at any time after the Issuer has determined that Global Notes should be exchanged for Definitive Registered Notes pursuant to Section 2.06(a)(3) above and the enforcement of the Notes, the Guarantees of the Notes or the Note Security Documents following the occurrence of any payments Event of Default with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will foregoing provisions shall survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, the Notes and will apply, shall apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer or any Guarantor the Guarantor, as the case may be, is incorporatedorganized, engaged in business for tax purposes or business, resident for tax purposes purposes, or any jurisdiction from or through which such Person makes any payment otherwise subject to taxation on the Notes and any department a net income basis or any political subdivision sub-divisions or Taxing Authority or agency thereof or therein.
Appears in 1 contract
Samples: Indenture (Inmarsat Holdings LTD)
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor Issuers under or with respect to the Notes or any Guarantor with respect to any Guarantee of the Subsidiary Guarantees Notes will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxTaxes unless the withholding or deduction for, dutyor on account of, levysuch Taxes is then required by law or by the interpretation or administration thereof. If any deduction or withholding for, impostor on account of, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) Taxes imposed or levied by or on behalf of (1) any jurisdiction in which the Company any Issuer or any Guarantor (including any successor entities) is then organized incorporated or organized, engaged in business for tax purposes or otherwise resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction by from or through which payment is made by or on behalf of any Issuer or Guarantor (including the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each, a “Relevant Taxing Tax Jurisdiction”), unless the Company or ) will at any Guarantor (or any Paying Agent) is time be required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or be made from any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied payments made by or on behalf of a Relevant Taxing Jurisdiction from any payment made the Issuers under or with respect to the Notes or any Guarantor under or with respect to any Guarantee of the Subsidiary GuaranteesNotes, including payments of principal, redemption price, purchase price, interest or premium, the Company Issuers or any such Guarantor the relevant Guarantor, as applicable, will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by each Holder after such Holder deduction or withholding (including the Additional Amounts) after any such withholding or deduction from such Additional Amounts) will not be less than equal the amount such Holder respective amounts that would have been received if in respect of such Taxes had not been withheld payments in the absence of such withholding or deducteddeduction; provided, provided however, that no Additional Amounts will be payable with respect to any Noteto:
(a1) surrendered by any Taxes, to the extent such Taxes would not have been imposed but for the existence of any present or former connection between the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later Notes (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of (1) a power over, the date on which such payment first became due and (2) relevant Holder, if the full amount payable has not been received by or on behalf of the relevant Holder is an estate, trust, nominee, partnership, limited liability company or corporation, in each case even if the beneficial owner on or prior payment is required to be made to such due date, person by the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason laws of the failure to comply by Tax Jurisdiction) and the Holder or, if different, the beneficial owner relevant Tax Jurisdiction (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner including being or having been a citizen citizen, resident, or resident national thereof or being or having been present or engaged in a trade or business therein or having or having had a permanent establishment therein), but excluding any connection arising merely from the holding of such Note, the enforcement of rights under such Note or under a Guarantee of the Notes or the receipt of any payments in respect of such Note or a Guarantee of the Notes;
(d2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on account the last day of such 30 day period);
(3) any estate, inheritance, gift, salesales, excise, transfer, personal property or other similar tax, assessment or other governmental chargeTaxes;
(e4) except in any Taxes withheld or deducted pursuant to (i) any European Union directive or regulation concerning the case taxation of interest income, or (ii) any international treaty or understanding relating to such taxation and to which the winding up of the Company European Union or any Guarantorof its member states is a party, or (iii) any Note surrendered for payment in the Republic provision of Francelaw implementing, or complying with, or introduced to conform with, such directive, regulation, treaty or understanding;
(f5) any Taxes imposed on or with respect to a payment made to a Holder or beneficial owner of Notes who would have been able to avoid such withholding or deduction by presenting the relevant Note to another paying agent;
(6) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or with respect to any Guarantee of the Notes;
(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, following any Issuer’s written request addressed to the Holder or beneficial owner (and made at a time that would enable the Holder or beneficial owner acting reasonably to comply with that request), 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 result 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);
(8) any combination of (a), (b), (c), (d) or (e) Taxes imposed on or with respect to any payment made by the Issuers or on behalf of Guarantors to the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who if such Holder 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 or beneficial owner Taxes would not have been entitled to any Additional Amounts imposed on such payment had such beneficiary or settlor or Holder been the sole beneficial owner been the Holderof such Note;
(g9) such any U.S. federal withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005Taxes under FATCA;
(h10) when such withholding any Taxes imposed or deduction is required to be made by reason of that interest being withheld solely (xA) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder beneficial owner owning or having owned, actually or constructively (i) with respect to any Issuer that is treated as a corporation for U.S. federal tax purposes, 10 percent or more of the total combined voting power of all classes of stock of such Issuer entitled to vote or (ii) with respect to any Issuer that is treated as a partnership for U.S. federal tax purposes, 10 percent or more of the capital or profits interest in such Issuer, or (B) by reason of the beneficial owner being a bank that has invested in the notes as an extension of credit in the ordinary course of its trade or business;
(11) any taxes imposed or withheld in whole or in part by reason of the Note concurrently beneficial owner being a shareholder or having been any of the Company following (as these terms are defined in the Code): a personal holding company; a foreign private foundation or of any Guarantorother foreign tax-exempt organization; a passive foreign investment company; a controlled foreign corporation; or a corporation which has accumulated earnings to avoid U.S. federal income tax; or
(k12) Any any combination of items (a1) through (j11) above. Notwithstanding any other provision of this Indenture.
(b) In addition to the foregoing, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States Issuers and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding pay and indemnify the Holder for any present or deduction future stamp, issue, registration, court or documentary taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and remit any other reasonable expenses properly incurred related thereto) which are levied by any Tax Jurisdiction on the full amount deducted execution, delivery, issuance or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment registration of any Taxes is due pursuant to applicable lawof the Notes, to the Trusteeindenture, copies any Guarantee of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company Notes or any other document or instrument referred to therein (other than a transfer of the Notes after this offering) or the receipt of any payments with respect thereto, or any such taxes, charges or similar levies imposed by any jurisdiction as a result of, or in connection with, the enforcement of any of the Notes or any Guarantee of the Notes.
(c) If any Issuer or Guarantor. The Trustee , as the case may be, becomes aware that it will make such evidence available be obligated to the Holders upon request. At least 30 days prior pay Additional Amounts with respect to each date on which any payment under or with respect to the Notes or any Guarantee of the Subsidiary Guarantees Notes, each of the relevant Issuers or Guarantor, as the case may be, will deliver to the Trustee and each Paying Agent on a date that is due and payable, if at least 30 days prior to the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such date of that payment (unless such the obligation to pay Additional Amounts arises after the 30th day less than 30 days prior to the date on which that payment under or with respect to the Notes or the Subsidiary Guarantees is due and payabledate, in which case it will be paid promptly thereafter and in any case before the relevant payment date), Issuers or Guarantors shall notify the Company will deliver to Trustee and each Paying Agent promptly thereafter) an Officers’ Officer’s Certificate stating the fact that such Additional Amounts will be payable, payable and the amount estimated to be so payable and will payable. The Officer’s Certificate(s) must also set forth such any other information as reasonably necessary to enable such the Paying Agent to pay such Additional Amounts to Holders on the Holders relevant payment date. The Trustee and each Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary.
(d) The relevant Issuer or Guarantor will make all withholdings and deductions required by law with respect to any payment under or relating to the Notes or any Guarantee of the Notes on and will timely remit the full amount so deducted or withheld to the relevant tax authority in accordance with applicable law. The relevant Issuer or Guarantor will use its reasonable efforts to obtain tax receipts from each tax authority evidencing the payment dateof any Taxes so deducted or withheld. The relevant Issuer or Guarantor will furnish to the Trustee and each Paying Agent, 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 Issuers or a Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments by such entity.
(e) Whenever in this Indenture there is mentioned, in any context, (a) the payment of amounts based upon the principal (and premium, if any), (b) purchase prices in connection with a purchase amount of the NotesNotes or of principal, (c) interest or (d) of any other amount payable on under, or with respect to to, any of the Notes or any Guarantee of the Subsidiary GuaranteesNotes, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(f) The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic preceding provisions of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 5.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any Guarantee of the Notes, any transfer by a holder Holder or beneficial owner of its notesNotes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the any Issuer or any Guarantor is incorporated, engaged in business for tax purposes or otherwise resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes (or any Guarantee of the Notes) and any department or any political subdivision thereof or therein.
Appears in 1 contract
Samples: Eleventh Supplemental Indenture (MPT Operating Partnership, L.P.)
Additional Amounts. All payments made by or of principal of, premium (if any) and interest on behalf of the Company or any Guarantor New Notes and all payments under or with respect to the Notes or the Subsidiary Note Guarantees will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) charges of whatever nature imposed or levied by or on behalf of within Perú or any jurisdiction in which the Company Issuer or any Guarantor (including applicable Guarantor, or any successor entities) of the Issuer or any applicable Guarantor, wherein any successor assumes the obligations of the New Notes and this Indenture following a merger, consolidation or transfer, lease or conveyance of substantially all of the predecessors assets, is then organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein or any jurisdiction by or through which payment is made therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless the Company such withholding or any Guarantor (or any Paying Agent) deduction is required to withhold by law or deduct Taxes under by regulation or governmental policy having the laws force of law. In the event that any such withholding or deduction is so required, the Issuer or the applicable Guarantor, as the case may be, will make such deduction or withholding, make payment of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is amount so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect withheld to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor appropriate governmental authority and will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that will result in receipt by the net amount Holders of such amounts as would have been received by such Holder (including the Additional Amounts) after Holders had no such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deductedrequired, provided except that no Additional Amounts will be payable with respect to any Notepayable:
(a) surrendered by for or on account of:
(i) any withholding or deduction that is imposed on payments of interest (as opposed to any withholding or deduction that is imposed on the proceeds of a redemption of a New Note) at a rate that exceeds 4.99% in the aggregate to a Holder that does not qualify for the Peruvian income tax withholding rate of 4.99% (the “4.99% Rate”) on payments of interest on the New Notes, unless failure to qualify for the 4.99% Rate is due to a change in, or amendment to, the laws (or any regulations or rulings promulgated thereunder) of Perú or Cyprus affecting taxation and such change or amendment occurs after the Holder acquires the New Notes (however, for the avoidance of doubt, the Issuer will, subject to the conditions below, be obligated to pay Additional Amounts in such case with respect to the amounts that are deducted or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf withheld in respect of the relevant Holder or first 4.99% of the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day periodinterest payment);
(bii) if any tax, duty, assessment or other governmental charge is that would not have been imposed but for:
(1) the existence of any present or withheld by reason of former connection between the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide informationof such New Note or Note Guarantee, documents or other evidence concerning as the nationalitycase may be, residence, identity or connection with and the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary GuaranteeJurisdiction, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident of such Relevant Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein, other than merely holding such New Note or the receipt of payments thereunder or under the Note Guarantee;
(d2) the presentation of such New Note (where presentation is required) more than thirty (30) days after the later of the date on account which the payment of the principal of, premium, if any, or interest on, such New Note became due and payable pursuant to the terms thereof or was made or duly provided for, except to the extent that the Holder thereof would have been entitled to such Additional Amounts if it had presented such Note for payment on any day within such thirty (30) day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Issuer or any Guarantor addressed to the Holder or beneficial owner, as the case may be, to provide information 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 under applicable law, regulation or administrative practice or treaty would have reduced or eliminated any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such New Note (where presentation is required) for payment in the Relevant Jurisdiction, unless such New Note could not have been presented for payment elsewhere;
(iii) any estate, inheritance, gift, sale, transfer, excise or personal property or other similar tax, assessment or other governmental charge;
(eiv) except in any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) or interest on the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of FranceNew Notes;
(fv) as a result any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal, premium (if any) or interest on the New Note, if such tax, assessment or other governmental charge results from the presentation of such New Note for payment (where presentation is required) and the payment can be made without such withholding or deduction by the presentation of such New Note for payment to at least one other paying agent; or
(vi) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (ai), (bii), (ciii), (div) or and (ev) or of this Section 2.12(a).
(b) with respect to any payment made by or on behalf of the Company principal of, or premium, if any, or interest on, such New Note or any Guarantor in respect of payment under any Note or Subsidiary Guarantee to any a Holder, if the Holder who is a fiduciary or fiduciary, partnership or person other than the sole beneficial owner of such 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 another beneficial owner who would not have been entitled to any such Additional Amounts had such beneficiary or settlor that beneficiary, settlor, partner, or beneficial owner been the Holder;Holder thereof.
(gc) such withholding or deduction Whenever there is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and mentioned in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) context the payment of principal (of, and premiumany premium or interest on, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest any New Note or (d) under any other amount payable on or with respect to any of the Notes or the Subsidiary GuaranteesNote Guarantee, such mention is will be deemed to include mention of the payment of Additional Amounts provided for in this section Indenture to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(d) The Company or Issuer intends to withhold Peruvian taxes from interest payments on the New Notes at a Guarantorrate of 4.99% and to pay Additional Amounts, subject to the conditions of this Section 2.12, with respect thereto for so long as the case may be, New Notes are held by DTC or its nominee.
(e) The Issuer will pay provide the Trustee with documentation reasonably satisfactory evidencing the payment of taxes in respect of which the Issuer has paid any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in Additional Amounts. Copies of such documentation will be made available to the United States, applicable recipients upon written request therefor to the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration Trustee.
(f) The obligation of the Notes or on Issuer to pay Additional Amounts will survive the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations repayment of the Company New Notes and the sale or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge transfer of this Indenture or any transfer by a holder the New Notes (or beneficial owner of its notes, and will apply, mutatis mutandis, to interests therein) by any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereininvestor.
Appears in 1 contract
Samples: Indenture (Camposol Holding PLC)
Additional Amounts. (a) All payments made by or on behalf of the Company Issuer or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees any Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied Taxes unless required by or on behalf of any jurisdiction in which law. If the Company Issuer or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) other applicable withholding agent is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required law to withhold or deduct any amount for or on account of Taxes imposed by (i) any jurisdiction from or levied by through which such payment is made or on behalf any political subdivision or Taxing Authority thereof or therein or (ii) any other jurisdiction in which the Issuer or any Guarantor is incorporated, organized or otherwise resident or doing business for tax purposes or any political subdivision or Taxing Authority thereof or therein (each of (i) and (ii), a “Relevant Taxing Jurisdiction Jurisdiction”) from any payment made under or with respect to the Notes or the Subsidiary Guaranteesunder any Guarantee, the Company Issuer or any such Guarantor Guarantor, as the case may be, will pay to each Holder of the Notes that are outstanding on the date of the required payment, (together with such payments) such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) each beneficial owner of Notes after such withholding or deduction (including any withholding or deduction attributable to the Additional Amounts) will be not be less than the amount such Holder the beneficial owner would have received if such Taxes had not been withheld or deducted.
(b) Neither the Issuer nor any Guarantor will, provided that no however, pay Additional Amounts will be payable with to a Holder or beneficial owner of Notes in respect to any Noteor on account of:
(a1) surrendered any Tax, to the extent such Tax would not have been imposed or levied by a Relevant Taxing Jurisdiction, but for the existence of any present or former connection between the Holder or the beneficial owner thereof for payment (or between a fiduciary, settlor, beneficiary, member, partner or shareholder of, or possessor of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of power over the relevant Holder or beneficial owner, if the relevant Holder or beneficial owner on is an estate, nominee, trust, partnership, limited liability company or prior corporation) and such Relevant Taxing Jurisdiction (including, without limitation, as a result of being a citizen or national of, or being resident or doing business for tax purposes, or maintaining a permanent establishment in, the Relevant Taxing Jurisdiction) (other than any connection arising solely from the acquisition, ownership, holding or disposition of the Notes, the receipt of payments under or with respect to such due dateNotes or a Guarantee, or the date on which, the full amount having been so received, notice to that effect shall have been given exercise or enforcement of rights under or with respect to the Holders except Notes or any Guarantee);
(2) any Tax, to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge Tax is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of Notes, following the Issuer’s written request addressed to provide informationthe Holder or beneficial owner (and made at a time that would enable the Holder or beneficial owner acting reasonably to comply with that request, documents and in all events at least 30 days before the relevant date on which such withholding or other evidence deduction would be payable), to comply with any certification or identification requirements concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is owner, whether required or imposed by a statute, treaty, regulation or administrative practice of the a Relevant Taxing Jurisdiction Jurisdiction, as a precondition to exemption from all from, or part reduction in the rate of such taxdeduction or withholding of, assessment or governmental charge;
(c) held Taxes imposed by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than but in each case only to the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, extent such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment thereinowner, as the case may be, is legally eligible to provide such certification;
(d3) on account of any estate, inheritance, gift, salesales, transfer, personal property transfer or other similar tax, assessment or other governmental chargeTax;
(e4) except in any Tax that is payable otherwise than by deduction or withholding from payments made under or with respect to the case of the winding up of the Company Notes or any Guarantor, any Note surrendered for payment in the Republic of FranceGuarantee;
(f5) as any Tax that is imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of the Notes for payment on a result date more than 30 days after the date on which such payment became due and payable or a the date on which payment thereof was 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 for payment on any date during such 30-day period;
(6) any withholding or deduction which 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 consultation draft issued by the Swiss Federal Council on April 3, 2020, or otherwise changing the Swiss Withholding Tax system from an issuer-based system to a paying agent-based system pursuant to which a person in Switzerland other than the Issuer or a Guarantor is required to withhold tax on any combination interest payments;
(7) any Tax that is imposed or levied with respect to a Note presented for payment on behalf of a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Note to another paying agent in a member state of the European Union;
(a), (b), (c), (d) or (e) 8) any Tax imposed on or with respect to any payment made by the Issuer or on behalf of a Guarantor to the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who if such Holder is a fiduciary or partnership or person other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner Taxes would not have been entitled to any Additional Amounts imposed on such payment had such beneficiary the beneficiary, partner or settlor or other beneficial owner been directly held the HolderNote, provided that there is no material cost or material commercial or legal restriction to transferring the Notes to the beneficiary, partner or other beneficial owner and only to the extent such Tax is imposed more than 90 days after the Issuer notifies such Holder of the imposition of such Tax and requests the Holder to make such a transfer;
(g9) such withholding or deduction is any Taxes imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
Sections 1471 to 1474 (h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(binclusive) of the U.S. United States Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code Issue Date (or any successor version that is substantively comparable and not materially more onerous to comply with), including any current or future Treasury regulations thereunder or other official interpretations thereof) or an guidance thereunder and any intergovernmental agreement between the United States (and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory related legislation, rules or practices practices) implementing such an intergovernmental agreementthe foregoing;
(10) any Taxes imposed pursuant to the Dutch Withholding Tax Xxx 0000 (Wet Bronbelasting 2021) as amended from time to time; or
(11) any combination of (1) through (10) above.
(c) The Issuer and each Guarantor, if they are applicable withholding agents, will (i) make any such withholding or deductiondeduction required by applicable law, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant taxing authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts .
(to the extent received from the relevant tax authorities in the usual course or as generally providedd) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company Issuer or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it such notice will be paid provided promptly thereafter and in any case before the relevant after such obligation arises but prior to such payment date), the Company Issuer will deliver to each Paying Agent the Trustee an Officers’ Officer’s Certificate stating the fact that such Additional Amounts will be payable, payable and the amount so payable and will set forth such other information as (other than the identities of Holders and beneficial owners) necessary to enable such the Trustee or Paying Agent as the case may be, to pay such Additional Amounts to Holders on the relevant payment date. The Issuer will provide the Trustee with documentation evidencing payment of such Additional Amounts. The Trustee shall have no further obligation with respect to the payment of the Additional Amounts other than to deliver the evidence of such payment to a Holder upon written request.
(e) The Issuer or any Guarantor, as applicable, will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. If certified copies of such tax receipts are not reasonably obtainable, the Issuer or such Guarantor, as applicable, shall provide the Trustee other evidence of payment to the Trustee. Such certified copies or other evidence shall be made available to Holders upon written request. The Trustee shall have no obligation to inquire as to the efforts of the Issuer or any Guarantor to obtain certified copies of such tax receipts and shall have no further obligation with respect thereto other than to provide the tax receipts or other evidence to the Holders as provided herein.
(f) In addition, the Issuer will pay any present or future stamp, issue, registration, court, documentary excise or property Taxes, or other similar Taxes, imposed by any Relevant Taxing Jurisdiction in respect of the receipt of any payment under or with respect to the Notes or any Guarantee, the execution, issue, delivery, or registration of the Notes, any Guarantee, this Indenture, or any other document or instrument referred to therein, and any such Taxes imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes, any Guarantee, this Indenture or any other document or instrument following the occurrence of any Event of Default with respect to the Notes. Neither the Issuer nor any Guarantor will, however, pay such amounts that are imposed on or result from a sale or other transfer or disposition by a holder or beneficial owner of a Note (other than the initial resale of the Notes by the Initial Purchaser).
(g) The preceding provisions will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor to the Issuer or any Guarantor and to any jurisdiction in which any such successor is incorporated, organized or otherwise resident or doing business for tax purposes, or any jurisdiction from or through which such any successor makes payment on the payment date. Notes or any Guarantee, and any political subdivision or Taxing Authority thereof or therein.
(h) Whenever in this Indenture there is mentionedrefers to, in any context, (a) the payment of principal (and principal, premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on under or with respect to any of the Notes or the Subsidiary Guarantees(including payments thereof made pursuant to any Guarantee), such mention is deemed to include mention of reference includes the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 1 contract
Additional Amounts. All (a) The Issuers and the Guarantors are required to make all payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made and each Guarantee free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or on behalf of (i) Ireland or any political subdivision or any authority or agency therein or thereof having power to tax, (ii) any other jurisdiction in which the Company or any Guarantor (including any successor entities) an Issuer is then organized or otherwise resident for tax purposes or any political subdivision thereof or any authority or agency therein or thereof having the power to tax, (iii) any jurisdiction by from or through which payment on the Notes or any Guarantee or any political subdivision or any authority or agency therein or thereof having the power to tax is made or (eachiv) any jurisdiction in which a Guarantor that actually makes a payment on the Notes or its Guarantee is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or any authority or agency therein or thereof having the power to tax (each a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is Issuers and the Guarantors are required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authority. thereof.
(b) If the Company an Issuer or any a Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guaranteesany Guarantee, the Company or any such Guarantor Issuers and the Guarantors will be required to pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder Holders (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder Holders would have received if such Taxes had not been withheld or deducted; provided, provided however, that no the foregoing obligation to pay Additional Amounts will be payable with respect does not apply to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) any Taxes that would not have been so imposed but for the date existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, the relevant Holder, if the relevant Holder is an estate, nominee, trust or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on which a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction, but other than a connection arising from the acquisition, ownership or holding of such Note or the receipt of any payment first became due and in respect thereof); (2) if any estate, inheritance, gift, sales, value added, excise, transfer, personal property tax or similar tax, assessment or governmental charge; (3) any Taxes imposed as a result of the full amount payable has not been received by or on behalf failure of the relevant Holder or the beneficial owner on or prior of the Notes to such due date, the date on which, the full amount having been so received, notice comply with a timely request in writing of any Issuer addressed to that effect shall have been given to the Holders except to the extent that the Holder or beneficial owner, as the beneficial owner case may be (such request being made at a time that would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to enable such Holder or beneficial owner acting reasonably to comply with that request), to provide information, documents information concerning such Holder’s or other evidence concerning the beneficial owner’s nationality, residence, identity or connection with the any Relevant Taxing Jurisdiction of Jurisdiction, if and to the extent that due and timely compliance with such Holder or beneficial owner which is required or imposed by a statute, treatyrequest under applicable law, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition would have reduced or eliminated such Taxes with respect to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being owner, as applicable; (4) any Taxes that are payable other than by deduction or having been withholding from a citizen payment of the principal of, premium, if any, or resident interest, if any, on the Notes; (5) any Taxes that are required to be deducted or withheld on a payment to an individual and that are required to be made pursuant to Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on taxation of savings income or any law implementing or complying with, or introduced in order to conform to such Directives; or (6) any Taxes withheld or deducted pursuant to Sections 1471 through 1474 of the Internal Revenue Code (or any amended or successor version of such Sections), any U.S. Treasury regulations promulgated thereunder, any official interpretations thereof or being any agreements or having treaties (including any law implementing any such agreement or treaty) entered into in connection with the implementation thereof; nor will the Issuers or Guarantors pay Additional Amounts (x) if the payment could have been present made without such deduction or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in withholding if the case beneficiary of the winding up of payment had presented the Company or any Guarantor, any Note surrendered for payment in (where presentation is permitted or required for payment) within 30 days after the Republic of France;
(f) as a result of any combination of (a)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, (b), (c), (dy) or (e) or with respect to any payment made by of principal of (or premium, if any, on) or interest on behalf of the Company or any Guarantor in respect of any such Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to any the Additional Amounts had such beneficiary or settlor beneficiary, settlor, member or beneficial owner been the Holder;
actual Holder of such Note, or (gz) in respect of any Note where such withholding or deduction is imposed or levied on as a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law result of 23 December 2005;
any combination of clauses (h) when such withholding or deduction is required to be made by reason of that interest being 1), (2), (3), (4), (5), (6), (x) paid to a bank account opened in a financial institution established in), or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory and (Etat ou territoire non-coopératifz) as defined in Article 238-0 A of the French Code général des impôts;this paragraph.
(ic) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to The Issuers and the Notes;
(j) when such withholding or deduction is Guarantors will make any required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority Relevant Taxing Jurisdiction in accordance with applicable law. The Company Issuers and Guarantors will furnishprovide the Trustee, within 60 days after for the date benefit of the Holders, with official receipts evidencing the payment of the Taxes with respect to which Additional Amounts are paid. If, notwithstanding the efforts of the Issuers and Guarantors to obtain such receipts, the same are not obtainable, the Issuers and Guarantors will provide the Trustee with other evidence. In no event, however, shall any Taxes is due pursuant Issuer or Guarantor be required to applicable law, disclose any information it reasonably deems to be confidential.
(d) If the Trustee, copies of tax receipts (Issuers or the Guarantors are or will become obligated to pay Additional Amounts under or with respect to any payment made on the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company Notes or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At Guarantee, at least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)of such payment, the Company Issuers will deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, payable and the amount so payable and will set forth such other information as necessary to enable such the Paying Agent to pay such Additional Amounts to the Holders of the Notes on the relevant payment date. .
(e) Whenever in this Indenture there is mentioned, in any context, :
(ai) the payment of principal or interest;
(and premium, if any), (bii) redemption prices or purchase prices in connection with a redemption or purchase of the Notes, ; or
(c) interest or (diii) any other amount payable on or with respect to any of the Notes or the Subsidiary Guaranteesany Guarantee, such mention is reference shall be deemed to include mention of the payment of Additional Amounts provided for in as described under this section heading to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(f) The Company or a Guarantor, as Issuers and the case may be, Guarantors will pay any present or future stamp, court or documentary taxes or any other excise excise, property or property similar taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located Relevant Taxing Jurisdiction from the initial issue execution, delivery, enforcement or registration of the Notes or on the enforcement of any payments with respect to the Notes, this Indenture, any Subsidiary Guarantee, the Indenture Guarantee or any other documents related thereto (limiteddocument or instrument in relation thereof, in case of Taxes attributable and the Issuers and the Guarantors will agree to indemnify the receipt of payments thereto, to Holders for any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses taxes paid by such Holders.
(ag) through (k) above). The obligations of the Company or any Guarantor described in under this Section 4.19 heading will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the any Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Samples: Indenture (AerCap Holdings N.V.)
Additional Amounts. (a) All payments made by or on behalf of the Company Issuer or any Guarantor of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or the Subsidiary Guarantees will any Note Guarantee shall be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxTaxes unless the withholding or deduction of such Taxes is then required by law. If the Issuer, duty, levy, impost, assessment any Guarantor or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction in which the Company Issuer or any Guarantor (including any successor entities) is then or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction by from or through which any payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a Relevant Taxing Jurisdiction from “Tax Jurisdiction”) in respect of any payment made payments under or with respect to the Notes or the Subsidiary Guaranteesany Note Guarantee, including, without limitation, payments of principal, Redemption Price, purchase price, interest or premium, the Company Issuer or any such Guarantor will the relevant Guarantor, as applicable, shall pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by such each Holder (including the Additional Amounts) after such withholding or deduction will not be less than equal the amount such Holder respective amounts that would have been received if by each Holder in respect of such Taxes had not been withheld payments in the absence of such withholding or deducteddeduction; provided, provided however, that no Additional Amounts will shall be payable with respect to any Noteto:
(ai) surrendered by any Taxes, to the Holder extent such Taxes would not have been imposed but for the holder or the beneficial owner thereof for payment of principal more than 30 days after the later Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of a power over, the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder orowner, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such relevant Holder or beneficial owner to provide informationis an estate, documents trust, nominee, partnership, limited liability company or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(ccorporation) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being national of, or having been present or incorporated, engaged in a trade or business therein in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, this Indenture or a permanent establishment thereinNote Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(dii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on account the last day of such 30 day period);
(iii) any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental chargeTaxes;
(eiv) except in any Taxes payable other than by deduction or withholding from payments under, or with respect to, the case of the winding up of the Company Notes or any Guarantor, any Note surrendered for payment in the Republic of FranceGuarantee;
(fv) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the Holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the Holder at least 30 days before any such withholding or deduction would be imposed, 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 result precondition to exemption from, or reduction in the rate of any combination of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (aincluding, 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;
(b)vi) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a Holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(c), (dvii) or (e) any Taxes imposed on or with respect to any payment made by the Issuer or on behalf any of the Company or any Guarantor in respect Guarantors to the Holder of any Note or Subsidiary Guarantee to any the Notes if such 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 or beneficial owner such Taxes would not have been entitled to any Additional Amounts imposed on such payments had such beneficiary or settlor or Holder been the sole beneficial owner been the Holderof such Note;
(gviii) such withholding any Taxes imposed by the United States, any state thereof or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law District of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inColumbia, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State any subdivision thereof or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of thereof, including any U.S. federal withholding taxes and any Taxes which that are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to current Sections 1471 through 1474 of the Code or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any regulations thereunder related law or official interpretations thereofadministrative practices or procedures) implementing the foregoing or an intergovernmental agreement between any agreements entered into pursuant to current Section 1471(b)(1) of the United States and another jurisdiction facilitating the implementation thereof Code (or any fiscal amended or regulatory legislationsuccessor version described above); or
(ix) any combination of clauses (i) through (viii) above. In addition to the foregoing, rules the Issuer and the Guarantors will also pay and indemnify the holder for any present or practices implementing such an intergovernmental agreementfuture stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, this Indenture, any Note Guarantee or any other document referred to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Notes or any Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments or that are imposed on or result from a sale or other transfer or disposition of a Note by a Holder or a beneficial owner, to any such withholding Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (i) through (iii) or deduction(v) through (ix) above or any combination thereof), save in each case for any such taxes, charges or levies which arise or are increased as a “FATCA Withholding”). Neither result of any document effecting the Company nor registration, issue or delivery of any other person, including of the notes either being signed or executed in the United Kingdom or being brought into the United Kingdom.
(b) If the Issuer or any Guarantor, as the case may be, becomes aware that it will be required obligated to pay any Additional Amounts with respect to any payment under or with respect to the Notes or any Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 respect of FATCA Withholdingwhich case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Company Officer’s Certificates must also set forth any other information reasonably necessary to enable the Paying Agents to pay Additional Amounts to Holders on the relevant payment date. The Issuer or any the relevant Guarantor will also provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, shall make such withholding or deduction all withholdings and deductions (within the time period) required by law and shall remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Company will furnishIssuer or the relevant Guarantor shall 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 shall furnish to the Trustee (or to a Holder of the Notes upon request), within 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant 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 applicable lawobtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee, copies of tax receipts ) by such entity.
(to the extent received from the relevant tax authorities in the usual course or as generally providedd) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture or the Notes there is mentioned, in any context, (a) the payment of amounts based upon the principal (and premium, if any), (b) purchase prices in connection with a purchase amount of the NotesNotes or of principal, (c) interest or (d) of any other amount payable on under, or with respect to to, any of the Notes or the Subsidiary Guaranteesany Note Guarantee, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto .
(limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (ae) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will This Section 4.12 shall survive any termination, defeasance or satisfaction and discharge of this Indenture or Indenture, any transfer by a holder Holder or beneficial owner of its notesNotes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (or any Guarantor Guarantor) is incorporated, engaged in business for tax purposes business, organized or resident for tax purposes purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person makes any payment on the Notes and any department or and, in each case, any political subdivision thereof or therein.
Appears in 1 contract
Additional Amounts. All (a) The Company and any Guarantor are required to make all payments made by under this Indenture or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or on behalf of the government of the country in which the Company or Guarantor and any successor thereof is organized or incorporated or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or otherwise resident for tax purposes or the jurisdiction of any political subdivision thereof or therein or any jurisdiction by or through which payment is made Paying Agent (each, a “Relevant Taxing Jurisdiction”), unless the Company or any a Guarantor (or any Paying Agent) Agent is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authority. thereof.
(b) If the Company Company, or any Guarantor (Guarantor, or any a Paying Agent) Agent is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesNotes, the Company or any such Guarantor will be required to pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) with respect to the Notes as may be necessary so that the net amount received by such any Holder or beneficial owner (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder or beneficial owner would have received if such Taxes had not been withheld or deducted; provided, provided however, that no the foregoing obligation to pay Additional Amounts will be payable with respect to any Notedoes not apply to:
(ai) surrendered by any Taxes that would not have been so imposed but for the Holder existence of any present or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of former connection between the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with and the Relevant Taxing Jurisdiction (including a connection between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of such Holder power over, the relevant holder or beneficial owner, if the relevant holder or beneficial owner which is required an estate, nominee, trust, partnership or imposed by a statutecorporation, treaty, regulation or administrative practice of and the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(cJurisdiction) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitationlimiting the generality of the foregoing, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, partner, member, shareholder, or possessor) of the Notes being or having been a citizen citizen, resident, or resident national thereof or being or having been present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(dii) on account of any estate, inheritance, gift, salesales, transfer, transfer or personal property tax or other similar tax, assessment or other governmental chargeTaxes;
(eiii) except any withholding or deduction in the case respect of the winding up Notes (a) presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant note to any other paying agent, or (b) where the payment could have been made without such deduction or withholding if the beneficiary of the Company or any Guarantor, any Note surrendered payment had presented the notes for payment in within 30 days after the Republic date on which such payment on the notes became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the holder or beneficial owner would have been entitled to Additional Amounts had the notes been presented on the last day of Francesuch 30-day period);
(fiv) as a result of any combination of (a), (b), (c), (d) or (e) or Taxes imposed with respect to any payment made of principal (or premium, if any) or interest on the Notes by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder or beneficial owner who is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to any the Additional Amounts had such beneficiary or settlor beneficiary, settlor, member or beneficial owner been the Holderactual Holder or beneficial owner of such Notes;
(gv) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of any Taxes that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise other than by deduction or withholding or deduction from a payment payments made under or with respect to the Notes;
(jvi) when any Taxes that would not have been imposed but for the failure of the Holder and/or beneficial owner (a) to comply with the Company’s or the Paying Agent’s request in writing at least 30 days before any withholding for such Taxes to the Holder to provide certification, documentation, information or other evidence concerning the nationality, residence, entitlement to treaty benefits, identity, direct or indirect ownership of or investment in the Notes, or connection with the Relevant Taxing Jurisdiction of the Holder and/or beneficial owner of such Notes, or (b) to make any valid or timely declaration or similar claim or satisfy any other reporting requirement or to provide any information relating to such matters, whether required or imposed by statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of withholding or deduction is of, Taxes imposed by the Relevant Taxing Jurisdiction;
(vii) any Taxes that are required to be made by reason deducted or withheld from any payment under or in respect of the Notes as a consequence of the Holder or beneficial owner of Notes or the recipient of the interest payable on the Notes not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with the Company or any Guarantor at the time of making any such payment;
(viii) any Taxes that are required to be deducted or withheld from any payment under or in respect of the Notes as a consequence of the Holder or beneficial owner of the Note concurrently Notes being at any time a shareholder ‘‘specified non-resident shareholder’’ (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Company or at any time not dealing at arm’s length (within the meaning of any Guarantor; or
the Income Tax Act (kCanada)) Any combination with a “specified shareholder” (within the meaning of items subsection 18(5) of the Income Tax Act (aCanada)) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) as a consequence of the U.S. Internal Revenue Code of 1986, as amended payment being deemed to be a dividend under the Income Tax Act (the “Code”Canada), or otherwise imposed pursuant to Sections ;
(ix) any Taxes payable under section 1471 through 1474 of the Code (or any successor or amended versions thereof), any regulations thereunder or other official interpretations thereofguidance thereunder, or any agreement (including any intergovernmental agreement or any law implementing such governmental agreement) entered into in connection therewith (“FATCA”);
(x) any Taxes or penalties arising from the Holder’s or beneficial owner’s failure to comply with the Holder’s or beneficial owner’s obligations imposed under Part XVIII of the Income Tax Act (Canada), the Canada-United States Enhanced Tax Information Exchange Agreement Implementation Act (Canada) or the similar provisions of legislation of any other jurisdiction that has entered into an intergovernmental agreement between with the United States and another jurisdiction facilitating of America to provide for the implementation thereof of FATCA based reporting; or
(xi) any combination of, or any fiscal Taxes arising from a combination of the factors described in, (i) to (x) above.
(c) At least 30 calendar days prior to each date on which any payment under or regulatory legislation, rules or practices implementing with respect to the Notes is due and payable (unless such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required obligation to pay any Additional Amounts arises shortly before or after the 30th day prior to such date, in respect of FATCA Withholding. The which case it shall be promptly thereafter), if the Company or any Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company will deliver to the U.S. Trustee and paying agent for the affected Notes an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the U.S. Trustee or paying agent, as the case may be, to pay such Additional Amounts to Holders and beneficial owners of such Notes on the payment date. Each such Officers’ Certificate shall be relied upon until receipt of a further Officers’ Certificate addressing such matters.
(d) The Company or the applicable Guarantor will also (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishprovide the U.S. Trustee with official receipts or, within 60 days after if notwithstanding the date efforts of the Company official receipts are not obtainable, other documentation reasonably satisfactory to the U.S. Trustee, evidencing the payment of any Taxes is due pursuant Tax so deducted or withheld for each Relevant Taxing Jurisdiction imposing such Taxes. The Company will attach to applicable law, to each official receipt or other documentation a certificate stating (x) that the Trustee, copies amount of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made Tax evidenced by the Company official receipt or any Guarantor. The Trustee will make other documentation was paid in connection with payments in respect of the principal amount of such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due then outstanding and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and y) the amount so payable and will set forth of such other information as necessary to enable Tax paid per $1,000 of principal amount of such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Notes.
(e) Whenever reference is made in this Indenture there is mentionedIndenture, in any context, to (ai) the payment of principal (and premium, if any)principal, (bii) redemption prices or purchase prices in connection with a redemption or purchase of the Notes, (ciii) interest or (div) any other amount payable on or with respect to any of the Notes or the Subsidiary GuaranteesNotes, such mention is reference will be deemed to include mention of the payment of Additional Amounts provided for in as described under this section heading to the extent, extent that, in such context, Additional Amounts are, were are or would be payable in respect thereof. .
(f) The Company or a Guarantor, as the case may be, will pay any present or future stamp, court court, documentary or documentary taxes or any other excise or property similar taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue execution, delivery or registration of the Notes of, or on the enforcement of any payments with respect to the Notesrights under, any Subsidiary Guarantee, the this Indenture or any other documents related thereto document.
(limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (ag) through (k) above). The obligations of the Company or any Guarantor described in under this Section 4.19 2.13 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer Company or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department organized or any political subdivision or taxing authority or agency thereof or therein.
(h) The Company and the Guarantors shall indemnify and hold harmless the Trustees for the amount of any Taxes in respect of which the Company, or any Guarantor, is required to pay Additional Amounts pursuant to Section 2.13(b) that are levied or imposed and paid by the Trustees as a result of payments made under or with respect to the Notes or any Subsidiary Guarantee, including any reimbursements under this clause 2.13(h).
Appears in 1 contract
Samples: Indenture (Open Text Corp)
Additional Amounts. All (a) The Issuer, the Guarantors and each Paying Agent will make all payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made Securities and each Guarantee free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or on behalf of (i) Ireland, the Netherlands or the United States, or with respect to each of the foregoing any political subdivision or any authority or agency therein or thereof having power to tax, (ii) any other jurisdiction in which the Company or any Guarantor (including any successor entities) Issuer is then organized or otherwise resident for tax purposes or any political subdivision thereof or any authority or agency therein or thereof having the power to tax (and, in the case of the Issuer that is treated as a transparent or pass-through entity for purposes of the tax law of a jurisdiction in which any of its owners, members or beneficial owners is organized or otherwise resident for tax purposes, any such jurisdiction or any political subdivision or any authority or agency therein or thereof having the power to tax), (iii) any jurisdiction by from or through which payment on any Security or any Guarantee is made made, or any political subdivision or any authority or agency therein or thereof having the power to tax or (eachiv) any jurisdiction in which a Guarantor that actually makes a payment on any Security or any Guarantee is organized or otherwise resident for tax purposes, or any political subdivision or any authority or agency therein or thereof having the power to tax (and, in the case of a Guarantor that is treated as a transparent or pass-through entity for purposes of the tax law of a jurisdiction in which any of its owners, members or beneficial owners is organized or otherwise resident for tax purposes, any such jurisdiction or any political subdivision or any authority or agency therein or thereof having the power to tax) (each a “Relevant Taxing Jurisdiction”), unless the Company Issuer, a Guarantor or any Guarantor (or any a Paying Agent) Agent is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law applicable to such Person or by the interpretation or administration thereof by the relevant taxing authority. thereof.
(b) If the Company Issuer, a Guarantor or any Guarantor (or any a Paying Agent) Agent is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes any Security or the Subsidiary Guaranteesany Guarantee, the Company or any such Guarantor Issuer and the Guarantors will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder Holders (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder Holders would have received if such Taxes had not been withheld or deducted; provided, provided however, that no the foregoing obligation to pay Additional Amounts will be payable with respect does not apply to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) any Taxes that would not have been so imposed but for the date existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, the relevant Holder, if the relevant Holder is an estate, nominee, trust or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on which a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction, but other than a connection arising from the acquisition, ownership or holding of such Security or the receipt of any payment first became due and in respect thereof); (2) if any estate, inheritance, gift, sales, value added, excise, transfer, personal property tax or similar tax, assessment or governmental charge; (3) any Taxes imposed as a result of the full amount payable has not been received by or on behalf failure of the relevant Holder or the beneficial owner on or prior of the Securities to such due date, comply with a timely request in writing of the date on which, the full amount having been so received, notice Issuer addressed to that effect shall have been given to the Holders except to the extent that the Holder or beneficial owner, as the beneficial owner case may be (such request being made at a time that would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to enable such Holder or beneficial owner acting reasonably to comply with that request), to provide information, documents information concerning such Holder’s or other evidence concerning the beneficial owner’s nationality, residence, identity or connection with the any Relevant Taxing Jurisdiction of Jurisdiction, if and to the extent that due and timely compliance with such Holder or beneficial owner which is required or imposed by a statute, treatyrequest under applicable law, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition would have reduced or eliminated such Taxes with respect to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
owner, as applicable; (d4) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or Taxes that are payable other than the sole beneficial owner of such payment to the extent that a beneficiary by deduction or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
any Security or any Guarantee; (j5) when such withholding any Taxes that are required to be deducted or deduction is withheld from a payment to an individual and that are required to be made by reason pursuant to Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on taxation of savings income or any law implementing or complying with, or introduced in order to conform to such Directives; (6) any Taxes withheld or deducted pursuant to Sections 1471 through 1474 of the Internal Revenue Code (or any amended or successor version of such Sections), any U.S. Treasury regulations promulgated thereunder, any official interpretations thereof or any agreements (including any intergovernmental agreement or any law implementing any such agreement) entered into in connection with the implementation thereof; or (7) any United States Taxes withheld or deducted from a payment to any Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement Securities that is described in Section 1471(bSections 871(h)(3)(B) or 881(c)(3) of the U.S. Internal Revenue Code of 1986, as amended amended; nor will the Issuer or Guarantors pay Additional Amounts (x) if the “Code”)payment could have been made without such deduction or withholding if the Holder had presented the Security for payment (where presentation is required for payment) within 30 days after the date on which such payment on such Security became due and payable or the date on which payment thereof is duly provided for, whichever is later, (y) with respect to any payment of principal of (or premium, if any, on) or interest on such Security to any Holder who is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Security, or otherwise imposed pursuant to Sections 1471 through 1474 (z) in respect of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any Security where such withholding or deductiondeduction is imposed as a result of any combination of clauses (1), a “FATCA Withholding”(2). Neither , (3), (4), (5), (6), (7), (x), (y) and (z) of this paragraph.
(c) The Issuer and the Company nor Guarantors will make any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority Relevant Taxing Jurisdiction in accordance with applicable law. The Company Issuer and Guarantors will furnishprovide the Trustee, within 60 days after for the date benefit of the Holders, with official receipts evidencing the payment of the Taxes with respect to which Additional Amounts are paid. If, notwithstanding the efforts of the Issuer and Guarantors to obtain such receipts, the same are not obtainable, the Issuer and Guarantors will provide the Trustee with other evidence. In no event, however, shall the Issuer or any Guarantor be required to disclose any information it reasonably deems to be confidential.
(d) If the Issuer, a Guarantor or a Paying Agent is or will become obligated to deduct or withhold any Taxes is due pursuant and/or pay any Additional Amounts, each under or with respect to applicable law, to any payment made on the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company Securities or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At Guarantee, at least 30 days prior to each the date on which any payment under or with respect of such payment, the Issuer will deliver to the Notes Trustee an Officers’ Certificate to such effect stating the amount and nature of any such deduction or the Subsidiary Guarantees is due and withholding and, if Additional Amounts are payable, if stating the Company or any Guarantor becomes obligated amounts so payable and such other information necessary to enable the Paying Agent to pay Additional Amounts deposited with respect to such payment (unless such obligation to pay Additional Amounts arises after it by the 30th day prior to the date on which payment under or with respect to the Notes Issuer or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before Guarantors to Holders on the relevant payment date), the Company will deliver to each . The Paying Agent an Officers’ Certificate stating the fact that shall not be required to deduct or withhold non-US Taxes from any such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent payments it makes or to pay such Additional Amounts to Amounts, except in accordance with the Holders of the Notes on the payment date. foregoing.
(e) Whenever in this Indenture there is mentioned, in any context, :
(ai) the payment of principal or interest;
(and premium, if any), (bii) redemption prices or purchase prices in connection with a redemption or purchase of the Notes, Securities; or
(c) interest or (diii) any other amount payable on or with respect to any of the Notes Securities or the Subsidiary Guaranteesany Guarantee, such mention is reference shall be deemed to include mention of the payment of Additional Amounts provided for in as described under this section heading to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(f) The Company or a Guarantor, as Issuer and the case may be, Guarantors will pay any present or future stamp, court or documentary taxes or any other excise excise, property or property similar taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located Relevant Taxing Jurisdiction from the initial issue execution, delivery, enforcement or registration of the Notes or on the enforcement of any payments with respect to the NotesSecurities, this Indenture, any Subsidiary Guarantee, the Indenture Guarantee or any other documents related thereto (limiteddocument or instrument in relation thereof, in case of Taxes attributable and the Issuer and the Guarantors will agree to indemnify the receipt of payments thereto, to Holders for any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses taxes paid by such Holders.
(ag) through (k) above). The obligations of the Company or any Guarantor described in under this Section 4.19 heading will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes organized or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision or taxing authority or agency thereof or thereintherein (each of which shall also be treated as a Relevant Taxing Jurisdiction).
Appears in 1 contract
Samples: Share Repurchase Agreement (American International Group Inc)
Additional Amounts. All payments made by or on behalf the Issuer in respect of this Note and the Indenture and by the Guarantor in respect of the Company or any Guarantor under or with respect to Guarantee and the Notes or the Subsidiary Guarantees Indenture will be made free and clear of and without deduction or withholding for or on account of any present or future taxes, duties, assessments, fees or other governmental charges ("Taxes") imposed or levied by or on behalf of Luxembourg, the Russian Federation, any 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 withholding or deduction is required by law. If the Issuer is required to make any withholding or deduction for or on account of any present Taxes from any payment made under or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed to this Note, or levied by or on behalf of any jurisdiction in which if the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold make any withholding or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount deduction for or on account of any Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesGuarantee, the Company or any such Guarantor Issuer (or, in respect of the Guarantee, the Guarantor) will pay as additional interest to each the Holder of the Notes that are outstanding on the date of the required payment, this Note such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“"Additional Amounts”") as may be necessary so in order that every net payment made by the net amount received Issuer on this Note or by such Holder (including the Additional Amounts) Guarantor on the Guarantee after such deduction or withholding for or deduction on account of any Taxes will not be less than the amount such Holder would have received if such Taxes had then due and payable on this Note or the Guarantee. The foregoing obligation to pay Additional Amounts, however, will not been withheld or deducted, provided that no Additional Amounts will be payable with respect apply to any (i) Taxes that would not have been imposed but for the existence of any present or former connection between the Holder of this Note and any Taxing Jurisdiction other than the mere receipt of such payment or the ownership or holding of this Note:
; (aii) surrendered Taxes that would not have been imposed but for the presentation by the Holder or the beneficial owner thereof of this Note for payment of principal on a date more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on whichwhich payment thereof is duly provided for, the full amount having been so received, notice whichever occurs later; (iii) Taxes required to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed be deducted or withheld by reason any Paying Agent from a payment on this 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 failure Holder to comply by with the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a Issuer's written request addressed to such the Holder or beneficial owner at least 60 days prior to the relevant payment to provide informationinformation with respect to any reasonable certification, documents documentation, information or other evidence reporting requirement concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of the Holder of such Holder 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 beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice any other European Union Directive implementing the conclusions of the Relevant Taxing Jurisdiction as a precondition to exemption from all ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income or part of such tax, assessment any law implementing or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Notecomplying with, or the receipt of payments made by or on behalf of the Company or any Guarantor introduced in respect thereof or any Subsidiary Guarantee, including, without limitationorder to conform to, such Holder Directive; or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(dvi) on account of any estate, inheritance, gift, sale, transfer, personal property sale or other similar excise tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 1 contract
Samples: Indenture (Mobile Telesystems Ojsc)
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor Issuer under or with respect to the Senior Secured Notes (whether or not in the Subsidiary Guarantees form of Definitive Registered Notes) or any of the Guarantors with respect to any Senior Secured Notes Guarantee will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxTaxes unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, dutyor on account of, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) Taxes imposed or levied by or on behalf of (1) any jurisdiction in which the Company Issuer or any Guarantor (including any successor entities) is then organized incorporated or organized, or otherwise resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction by from or through which payment is made by or on behalf of the Issuer or any Guarantor (including the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each, a “Relevant Taxing Tax Jurisdiction”), unless the Company or ) will at any Guarantor (or any Paying Agent) is time be required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or be made from any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied payments made by or on behalf of a Relevant Taxing Jurisdiction from any payment made the Issuer under or with respect to the Senior Secured Notes or any of the Subsidiary GuaranteesGuarantors under or with respect to any Senior Secured Notes Guarantee, including payments of principal, redemption price, purchase price, interest or premium, the Company Issuer or any such Guarantor the relevant Guarantor, as applicable, will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by each Holder after such Holder withholding, deduction or imposition (including the any such withholding, deduction or imposition from such Additional Amounts) after will equal the respective amounts that would have been received in respect of such payments in the absence of such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducteddeduction; provided, provided however, that no Additional Amounts will be payable with respect to any Noteto:
(a1) surrendered by any Taxes that would not have been imposed but for the existence of any actual or deemed (pursuant to applicable Tax law of the relevant Tax Jurisdiction, such as, if applicable, a connection of a partnership that is attributed to the partners/beneficial owners) present or former connection between the Holder or the beneficial owner thereof of the Senior Secured Notes and the relevant Tax Jurisdiction (including being a resident of such jurisdiction for Tax purposes), other than the holding of such Senior Secured Note, the enforcement of rights under such Senior Secured Note or under a Senior Secured Notes Guarantee or the receipt of any payments in respect of such Senior Secured Note or a Senior Secured Notes Guarantee;
(2) any Taxes imposed as a result of the presentation of a Senior Secured Note for payment of principal (where presentation is required) more than 30 days after the later of (1) the date on which such relevant payment is first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given made available for payment to the Holders Holder (except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts had the Senior Secured Note been presented on surrendering the last day of such Note for payment on any day during the applicable 30-30 day period);
(b3) if any taxestate, assessment inheritance, gift, sales, personal property, transfer or similar Taxes;
(4) any Taxes withheld, deducted or imposed on a payment to an individual that are required to be made pursuant to European Council Directive 2003/48/EC or any other governmental charge is 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;
(5) Taxes imposed on or with respect to a payment made to a Holder or beneficial owner of Senior Secured Notes who would have been able to avoid such withholding or deduction by presenting the relevant Senior Secured Note to another Paying Agent in a member state of the European Union;
(6) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Senior Secured Notes or with respect to any Senior Secured Notes Guarantee;
(7) any Taxes imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of Senior Secured Notes, to provide informationcomply with any reasonable written request of the Issuer addressed to the Holder and made at least 60 days before any such withholding or deduction would be payable to satisfy any certification, documents identification, information or other evidence concerning the nationalityreporting requirements, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is whether required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction a Tax Jurisdiction, as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Notefrom, or reduction in the receipt rate of payments made deduction or withholding of, Taxes imposed by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, Tax Jurisdiction (including, without limitation, such a certification that the Holder or beneficial owner being is not resident in the Tax Jurisdiction), but in each case, only to the extent the Holder or having been a citizen beneficial owner is legally entitled to provide such certification or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment thereindocumentation;
(d) 8) any Tax imposed on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by the Issuer or on behalf of the Company or any relevant Guarantor in respect of any Note or Subsidiary Guarantee to any the Holder who if such Holder is a fiduciary or partnership or person other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner Taxes would not have been entitled imposed on such payment had such Holder been the sole beneficial owner of such Senior Secured Notes; or
(9) any combination of items (1) through (8) above.
(b) In addition to Section 2.13(a), the Issuer and the Guarantors will also pay and indemnify the Holder for any present or future stamp, issue, registration, court or documentary taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and any other reasonable expenses related thereto) which are levied by any Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Senior Secured Notes, this Indenture, any Senior Secured Notes Guarantee or any other document or instrument referred to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Senior Secured Notes or any Senior Secured Notes Guarantee (other than on or in connection with a transfer of the Senior Secured Notes other than the initial resale of the Senior Secured Notes by the Initial Purchasers).
(c) If the Issuer or any Guarantor, as the case may be, becomes aware that it will be obligated to pay Additional Amounts with respect to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;Senior Secured Notes or any Senior Secured Notes Guarantee, each of the Issuer or the relevant Guarantor, as the case may be, will deliver to the Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises less than 45 days prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate(s) must also set forth any other information necessary to enable the Paying Agent to pay such Additional Amounts to Holders on the relevant payment date. The Issuer and the relevant Guarantor will provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary.
(jd) when such withholding or deduction is required to be made by reason of the Holder The Issuer or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any relevant Guarantor will also make such withholding or deduction 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 Company Issuer or the relevant Guarantor will furnishuse 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 a reasonable time after the date the payment of any Taxes so deducted or withheld is due pursuant 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 applicable lawobtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity. Upon reasonable request, copies of tax Tax receipts (to or other evidence of payments, as the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been case may be, will be made available by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders beneficial owners of the Notes on the payment date. Senior Secured Notes.
(e) Whenever in this Indenture there is mentioned, in any context, (a) the payment of amounts based upon the principal (and premium, if any), (b) purchase prices in connection with a purchase amount of the NotesSenior Secured Notes or of principal, (c) interest or (d) of any other amount payable on under, or with respect to to, any of the Senior Secured Notes or the Subsidiary Guaranteesany Senior Secured Notes Guarantee, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto .
(limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (af) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 2.13 will survive any termination, defeasance or satisfaction and discharge of this Indenture or Indenture, any transfer by a holder Holder or beneficial owner of its notesSenior Secured Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or otherwise resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Senior Secured Notes (or any Senior Secured Notes Guarantee) and any department or any political subdivision thereof or therein.
Appears in 1 contract
Samples: Senior Secured Notes Indenture
Additional Amounts. All payments made (a) The Company hereby agrees that any amounts to be paid by or on behalf of the Company or any Guarantor under or with respect to the Notes each Security shall be paid without deduction or the Subsidiary Guarantees will be made free withholding for any and clear of all present and without withholding or deduction for or on account of any present or future taxtaxes, dutylevies, levy, impost, assessment imposts or other governmental charge (including without limitationcharges whatsoever imposed, penaltiesassessed, interest and any other liability with respect thereto) (“Taxes”) imposed levied or levied collected by or on behalf for the account of any jurisdiction in which (i)(x) the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes Republic of Panama or any political subdivision or taxing authority thereof or therein (y) the jurisdiction of incorporation (other than the United States or any political subdivision or taxing authority thereof) of a successor entity to the Company pursuant to Section 8.1, to the extent that such taxes, levies, imposts or other governmental charges first become applicable as a result of such successor entity becoming the obligor on the Securities, or (ii) any other jurisdiction by (other than the United States or any political subdivision or taxing authority thereof) from or through which payment any amount is made paid by the Company hereunder or where it is resident or maintains a place of business or permanent establishment (each, each jurisdiction described in Clauses (i) and (ii) above is referred to herein as a “Relevant Taxing Jurisdiction” and such taxes, levies, imposts or other governmental charges are referred to as “Taxes”), unless the Company withholding or deduction of such Tax is compelled by laws of the Republic of Panama or any Guarantor other applicable Taxing Jurisdiction. If any deduction or withholding of any Taxes (other than Excluded Taxes, as defined below) is ever required by the Republic of Panama or any other Taxing Jurisdiction, the Company shall (subject to compliance by the Holder or beneficial owner of each Security with any applicable administrative requirements) pay such additional amounts (“Additional Amounts”) required to make the net amounts paid to each Holder of such Security or the Trustee pursuant to the terms of this Indenture or the Securities, after such deduction or withholding, equal to the amounts of principal, premium, if any, interest, if any, and sinking fund or analogous payments, if any, to which such Holder or the Trustee is entitled. However, the Company shall not be required to pay Additional Amounts in respect of the following Taxes (“Excluded Taxes”):
(1) any present or future Taxes imposed, assessed, levied or collected as a result of the Holder or beneficial owner of a Security (i) being organized under the laws of, or otherwise being or having been a domiciliary, national or resident of, (ii) being engaged or having been engaged in a trade or business in, (iii) having or having had its principal office located in, (iv) maintaining or having maintained a permanent establishment in, (v) being or having been physically present in, or (vi) otherwise having or having had some connection (other than the connection arising solely from holding or owning such Security, or collecting principal and interest, if any, on, or the enforcement of, such Security) with the Republic of Panama or any other applicable Taxing Jurisdiction;
(2) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, the relevant Security was presented more than thirty days after the date the relevant payment is first made available for payment to the Holder or beneficial owner;
(3) any present or future Taxes imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any Paying Agentrelated law or administrative practices or procedures) is required implementing the foregoing or any agreements entered into pursuant to withhold or deduct Taxes under the laws current Section 1471(b)(1) of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor Code (or any Paying Agentamended or successor version described above);
(4) is so required to withhold any present or deduct future Taxes payable other than by deduction or withholding from payments under, or with respect to, any amount for Security;
(5) any present or on account of future Taxes imposed in connection with a Security presented for payment (where presentation is permitted or levied required for payment) by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such 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 any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of the Security to provide informationthe extent such Taxes could have been avoided by presenting the relevant Security to, documents or otherwise accepting payment from, another Paying Agent;
(6) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the failure to make any certification, identification or other evidence report concerning the nationality, residence, identity or connection with the Relevant Republic of Panama or any other applicable Taxing Jurisdiction of such the Holder or beneficial owner which is required of such Security or imposed by claim for relief or exemption, if making such a statutecertification, treatyidentification, regulation other report or administrative practice claim is, under the laws, rules or regulations of the Relevant Taxing Jurisdiction as any such jurisdiction, a precondition condition to relief or exemption from all or part of such tax, assessment or governmental charge;Taxes;
(c7) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment Tax or other governmental charge;duty; or
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of 8) any combination of Clauses (a)1) through (7) above; provided further, (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor that no such Additional Amounts shall be payable in respect of any Note or Subsidiary Guarantee to Security held by (x) any Holder who or beneficial owner that is a fiduciary or partnership or other than not the sole beneficial owner of such payment Security, or that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, but only to the extent that a beneficiary or settlor with respect to the fiduciary or a beneficial owner owner, partner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to any such Additional Amounts had such beneficiary the beneficiary, settlor, beneficial owner, partner or settlor or beneficial owner member been the Holder;
(g) direct holder of such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inSecurity, or (y) paid or accrued to any Holder that is not a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A resident of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect United States to the Notes;
(j) when extent that, had such withholding or deduction is required to be made by reason Holder been a resident of the Holder United States and eligible (taking into account any applicable limitation on benefits article or similar provision) for the beneficial owner of the Note concurrently being a shareholder of the Company or benefit of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement double taxation treaty between the United States and another jurisdiction facilitating the implementation thereof applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security, such Holder would not have been entitled to such Additional Amounts, or (z) any Holder that is a resident of the United States but that is not eligible for the benefit of any double taxation treaty between the United States and the applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security (but only to the extent the amount of such deduction or any fiscal or regulatory legislation, rules or practices implementing withholding exceeds that which would have been required had such an intergovernmental agreement) (any such withholding or deduction, Holder of a “FATCA Withholding”Security been so eligible and made all relevant claims). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will successor to the Company, as the case may be, agrees to indemnify and hold harmless each Holder of a Security and upon written request reimburse each Holder for the amount of (i) any Taxes levied or imposed and paid by such Holder of a Security (other than Excluded Taxes) as a result of payments made with respect to such Security, (ii) any liability (including penalties, interest and expenses) arising therefrom with respect thereto, and (iii) any Taxes (other than Excluded Taxes) with respect to payment of Additional Amounts or any reimbursement pursuant to this sentence, in each case, to the extent not otherwise reimbursed by the payment of any Additional Amount and not excluded from the requirement to pay Additional Amounts, as described above. The Company or any successor to the Company, as the case may be, shall also (i) make such withholding or deduction to the extent required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishor any successor to the Company, as the case may be, shall furnish the Trustee within 60 30 days after the date the payment of any such Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to evidencing the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available successor to the Holders upon requestCompany, as the case may be, or other evidence of such payment reasonably satisfactory to the Trustee. It is understood, however, that the Trustee is under no obligation to request such certified copies of tax receipts evidencing the payment. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Securities is due and payable, if the Company or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)those payments, the Company will shall deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and stating the amount so amounts that will be payable and will set setting forth such any other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes Securities on the payment date. Whenever in this Indenture or any Security there is mentioned, in any context, (a) the payment of principal (and the principal, premium, if any), (b) purchase prices or interest, or sinking fund or analogous payment, if any, in connection with a purchase respect of the Notes, (c) such Security or overdue principal or overdue interest or (d) any other amount payable on overdue sinking fund or with respect to any of the Notes or the Subsidiary Guaranteesanalogous payment, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section herein to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as thereof pursuant to the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic provisions of France or this Section and express mention thereof in any jurisdiction provisions hereof shall not be construed as excluding Additional Amounts in which a Paying Agent those provisions hereof where such express mention is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto not made (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveif applicable). The obligations of the Company or (and any Guarantor described in successor entity to the Company pursuant to Section 8.1) under this Section 4.19 will 10.5 shall survive any termination, defeasance or satisfaction and discharge the termination of this Indenture and the payment of all amounts under or with respect to the Securities.
(b) Each Holder of a Security, by acceptance of such Security, agrees that, with reasonable promptness after receiving written notice from the Company to the effect that such Xxxxxx is eligible for a refund in respect of Taxes actually paid by the Company pursuant to this Section 10.5, such Holder will sign and deliver, as reasonably directed by the Company, any transfer form provided to such Holder by the Company to enable such Holder to obtain a refund in respect of such Taxes; and if such Holder thereafter receives such refund in respect of such Taxes, such Holder will promptly pay such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority). If a Holder applies for a refund of such Taxes prior to a request by the Company to apply for such a refund, the Holder will, upon receipt of a request by the Company to apply for, or to turn over the proceeds of, any such refund, pay any such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority), promptly upon receipt of such refund. The Company shall pay all reasonable out-of-pocket expenses incurred by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction Holder in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which connection with obtaining such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinrefund.
Appears in 1 contract
Samples: Indenture (Carnival PLC)
Additional Amounts. All payments made by (a) At least 10 days prior to the first date on which payment of principal, premium, if any, or interest on behalf of the Company Notes or the Guarantees is to be made, and at least 10 days prior to any Guarantor under or subsequent such date if there has been any change with respect to the matters set forth in the Officers’ Certificate described in this Section 4.20, the Issuer will furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate instructing the Trustee and the Paying Agent that such payment of principal, premium, if any, or interest on the Notes (whether or not in the Subsidiary Guarantees will form of Definitive Notes) or any Guarantee shall be made free and clear of and without to the Holders with withholding or deduction for (but only in case such payment shall be made with such withholding or deduction) for, or on account of of, any present or future taxtaxes, dutyduties, levyassessments or governmental charges of whatever nature (collectively, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of (i) any jurisdiction in which the Company Payor or any Guarantor (including any or successor entities) Guarantor is then organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (ii) any jurisdiction by from or through which payment on the Notes or any of the Guarantees is made made, or any political subdivision or governmental authority thereof or therein having the power to tax (eacheach of clause (i) and (ii), a “Relevant Taxing Jurisdiction”), unless the Company withholding or deduction of Taxes is then required by law.
(b) If any Guarantor (deduction or withholding for, or on account of, any Paying Agent) is required to withhold or deduct Taxes under the laws of the any Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or will at any Guarantor (or any Paying Agent) is so time be required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment payments made under or with respect to the Notes or the Subsidiary Guarantees, including payments of principal, Redemption Price, interest or premium, if any, the Company Payor or any such Guarantor the relevant Guarantor, as applicable, will pay to each Holder of the Notes that are outstanding on the date of the required payment, (together with such payments) such additional amounts pursuant to Paragraph 2 of the relevant series of Notes (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such 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 any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;).
(c) held by The Payor and each Guarantor or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any successor Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
will (i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is make any required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority Relevant Taxing Jurisdiction in accordance with applicable law. The Company Upon written request, the Payor and each Guarantor will furnish, within 60 days after the date use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes is due pursuant so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to applicable law, each Holder. The Payor and each Guarantor or successor Guarantor will attach to each certified copy a certificate stating (x) that the Trustee, copies amount of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made withholding Taxes evidenced by the Company or any Guarantor. The Trustee will make such evidence available to certified copy was paid in connection with payments in respect of the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the principal amount of Notes or the Subsidiary Guarantees is due then outstanding and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and y) the amount so payable and will set forth of such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders withholding Taxes paid per €1,000 principal amount of the Notes on the payment date. Whenever Notes.
(d) Wherever in this Indenture or the Notes there is are mentioned, in any context, (ai) the payment of principal (and premium, if any)principal, (bii) purchase prices in connection with a purchase of the Notes, (ciii) interest or (div) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is reference shall be deemed to include mention of the payment of Additional Amounts provided for as described in this section Indenture and the Notes to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(e) The Company Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or a Guarantorexpense incurred without gross negligence, as the case may be, will pay any present willful default or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic fraud on their part arising out of France or in connection with actions taken or omitted by any jurisdiction of them in which a Paying Agent is located from the initial issue or registration of the Notes or reliance on the enforcement of any payments with respect Officers’ Certificate furnished to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable them pursuant to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 4.20.
(f) Obligations under this Section 4.20 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinIndenture.
Appears in 1 contract
Samples: Indenture (Smurfit Westrock PLC)
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Note Guarantees will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge of a similar nature (including without limitationpenalties, penaltiesadditions to tax, interest and any other liability with respect liabilities related thereto) (“Taxes”) imposed unless the withholding or levied by or on behalf deduction of any jurisdiction in which the Company or any Guarantor (including any successor entities) such Taxes is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction required by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authoritylaw. If the Company any deduction or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for withholding for, or on account of of, any Taxes imposed or levied by or on behalf of the government of the Republic of the Mxxxxxxx Islands or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which the Company or applicable Guarantor (including any successor entity) is organized, incorporated, engaged in business or is otherwise resident or treated as resident for tax purposes, or any jurisdiction from or through which payment is made (including, without limitation, the jurisdiction of each Paying Agent) (each a Relevant Taxing Jurisdiction “Specified Tax Jurisdiction”), will at any time be required to be made from any payment payments made under or with respect to the Notes or the Subsidiary Note Guarantees, the Company or any such applicable Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in or the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by in respect of such Holder payments (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder that would have been received in respect of such payments if such Taxes had not been withheld or deducted; provided, provided however, that no the foregoing obligation to pay Additional Amounts does not apply to:
(1) any Taxes that would not have been so imposed but for the Holder or Beneficial Owner of the Notes having any present or former connection with the Specified Tax Jurisdiction (other than the mere acquisition, ownership, holding, enforcement or receipt of payment in respect of the Notes or the Note Guarantees);
(2) any estate, inheritance, gift, sales, excise, transfer, capital gains, personal property or similar Tax;
(3) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or the Note Guarantees;
(4) any Taxes imposed as a result of the failure of the Holder or Beneficial Owner of the Notes, to the extent it is legally entitled to do so, to complete, execute and deliver to the Company any form or document to the extent applicable to such Holder or Beneficial Owner that may be required by law (including any applicable tax treaty) or by reason of administration of such law and which is reasonably requested in writing by the Company or the applicable Guarantor at least 90 days before such withholding or deduction will be payable to be delivered to the Company in order to enable the Company or the applicable Guarantor to make payments on the Notes or the Note Guarantees without deduction or withholding for Taxes, or with respect to any Note:deduction or withholding of a lesser amount, which form or document will be delivered within 60 days of a written request therefor by the Company;
(a5) surrendered by any Taxes that would not have been so imposed but for the Holder or beneficiary of the beneficial owner thereof payment having presented a Note for payment of principal (in cases in which presentation is required) more than 30 days after the later of (1) the date on which such payment first or such Note became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on whichwhich payment thereof is duly provided for, the full amount having been so received, notice to that effect shall have been given to the Holders whichever is later (except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts had the Note been presented on surrendering the last day of such Note for payment on any day during the applicable 30-day period);
(b6) if any tax, assessment or other governmental charge is Taxes imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any the Holder who if such Holder is a fiduciary or fiduciary, partnership or person other than the sole beneficial owner Beneficial Owner of such payment payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or beneficial owner the Beneficial Owner of such payment would not have been entitled to any Additional Amounts had such beneficiary beneficiary, settlor, member or settlor or beneficial owner Beneficial Owner been the Holderactual Holder of such Note;
(g7) such withholding or deduction is any Taxes imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A Sections 1471 through 1474 of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 as of the Code date hereof (or any regulations amended or successor version that is substantively comparable and not materially more onerous to comply with) or any current or future Treasury Regulations or other official administrative guidance promulgated thereunder or official interpretations thereof) any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing (and another jurisdiction facilitating including, for the implementation thereof avoidance of doubt, pursuant to any agreement entered into pursuant to Section 1471(b)(1) of the Code as of the date hereof (or any fiscal amended or regulatory legislation, rules or practices implementing such an intergovernmental agreementsuccessor version described above)); or
(8) any combination of clauses (1) through (any such withholding or deduction, a “FATCA Withholding”). Neither 7) above.
(b) If the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor becomes aware that it will also make such withholding or deduction and remit the full amount deducted or withheld be obligated to the relevant authority in accordance pay Additional Amounts with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant respect to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payableNote Guarantees, if the Company or any Guarantor becomes obligated will deliver to pay Additional Amounts with respect the Trustee and Paying Agent at least 30 days prior to such the date of that payment (unless such the obligation to pay Additional Amounts arises after the 30th day prior to the date on which that payment under or with respect to the Notes or the Subsidiary Guarantees is due and payabledate, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each notify the Trustee and Paying Agent promptly thereafter but in no event later than two Business Days prior to the date of payment) an Officers’ Officer’s Certificate stating the fact that such Additional Amounts will be payable, payable and the amount so payable and will payable. The Officer’s Certificate must also set forth such any other information as necessary to enable such the Paying Agent to pay such Additional Amounts to Holders on the relevant payment date. The Trustee and Paying Agent will be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Company will provide the Trustee and Paying Agent with documentation reasonably satisfactory to the Trustee and Paying Agent evidencing the payment of Additional Amounts.
(c) The Company or applicable Guarantor will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant governmental authority on a timely basis in accordance with applicable law. As soon as practicable, the Company will make commercially reasonable efforts to provide the Trustee and Paying Agent with an official receipt or, if official receipts are not obtainable, other documentation reasonably satisfactory to the Trustee and Paying Agent evidencing the payment of the Taxes so withheld or deducted. Upon written request, copies of those receipts or other documentation, as the case may be, will be made available by the Trustee and Paying Agent to the Holders of the Notes on the payment date. Notes.
(d) Whenever in this Indenture there is mentionedreferenced, in any context, (a) the payment of amounts based upon the principal (and premium, if any), (b) purchase prices in connection with a purchase amount of the NotesNotes or of principal, (c) interest or (d) any other amount payable on under, or with respect to any of to, the Notes or the Subsidiary GuaranteesNotes, such mention is reference will be deemed to include mention of the payment of Additional Amounts provided for in as described under this section heading to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(e) The Company or applicable Guarantor will indemnify a GuarantorHolder or Beneficial Owner, within 10 Business Days after written demand therefor, for the full amount of any Taxes paid by such Holder or Beneficial Owner to a governmental authority of a Specified Tax Jurisdiction, on or with respect to any payment by on or account of any obligation of the Company or Guarantor to withhold or deduct an amount on account of Taxes for which the Company or Guarantor would have been obliged to pay Additional Amounts hereunder and any penalties, additions to tax, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant governmental authority. A certificate as to the case may be, amount of such payment or liability delivered to the Company by a Holder will be conclusive absent manifest error.
(f) The Company or applicable Guarantor will pay any present or future stamp, court, issue, registration, value added, court or documentary taxes or any other excise or property taxes, charges or similar levies (including penalties, additions to tax, interest and any other liabilities and reasonable expenses related thereto) that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located Specified Tax Jurisdiction from the initial issue execution, delivery, enforcement or registration of the Notes Notes, the Note Guarantees, this Indenture or on any other document or instrument in relation thereof, or the enforcement receipt of any payments with respect to the NotesNotes or the Note Guarantees (each such tax, any Subsidiary Guaranteea “Note Issuance Tax”), the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of and the Company or such Guarantor will indemnify the Holders or Beneficial Owners for any Guarantor such Note Issuance Taxes paid by such Holders or Beneficial Owners.
(g) The obligations described in this Section 4.19 3.09 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer Company or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department organized or any political subdivision or authority or agency thereof or therein.
Appears in 1 contract
Additional Amounts. All payments made (a) The Company hereby agrees that any amounts to be paid by or on behalf of the Company or any Guarantor under or with respect to the Notes each Security shall be paid without deduction or the Subsidiary Guarantees will be made free withholding for any and clear of all present and without withholding or deduction for or on account of any present or future taxtaxes, dutylevies, levy, impost, assessment imposts or other governmental charge (including without limitationcharges whatsoever imposed, penaltiesassessed, interest and any other liability with respect thereto) (“Taxes”) imposed levied or levied collected by or on behalf for the account of any jurisdiction in which (i)(x) the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes Republic of Panama or any political subdivision or taxing authority thereof or therein (y) the jurisdiction of incorporation (other than the United States or any political subdivision or taxing authority thereof) of a successor entity to the Company pursuant to Section 8.1, to the extent that such taxes, levies, imposts or other governmental charges first become applicable as a result of such successor entity becoming the obligor on the Securities, or (ii) any other jurisdiction by (other than the United States or any political subdivision or taxing authority thereof) from or through which payment any amount is made paid by the Company hereunder or where it is resident or maintains a place of business or permanent establishment (each, each jurisdiction described in Clauses (i) and (ii) above is referred to herein as a “Relevant Taxing Jurisdiction” and such taxes, levies, imposts or other governmental charges are referred to as “Taxes”), unless the Company withholding or deduction of such Tax is compelled by laws of the Republic of Panama or any Guarantor other applicable Taxing Jurisdiction. If any deduction or withholding of any Taxes (other than Excluded Taxes, as defined below) is ever required by the Republic of Panama or any other Taxing Jurisdiction, the Company shall (subject to compliance by the Holder or beneficial owner of each Security with any applicable administrative requirements) pay such additional amounts (“Additional Amounts”) required to make the net amounts paid to each Holder of such Security or the Trustee pursuant to the terms of this Indenture or the Securities, after such deduction or withholding, equal to the amounts of principal, premium, if any, interest, if any, and sinking fund or analogous payments, if any, to which such Holder or the Trustee is entitled. However, the Company shall not be required to pay Additional Amounts in respect of the following Taxes (“Excluded Taxes”):
(1) any present or future Taxes imposed, assessed, levied or collected as a result of the Holder or beneficial owner of a Security (i) being organized under the laws of, or otherwise being or having been a domiciliary, national or resident of, (ii) being engaged or having been engaged in a trade or business in, (iii) having or having had its principal office located in, (iv) maintaining or having maintained a permanent establishment in, (v) being or having been physically present in, or (vi) otherwise having or having had some connection (other than the connection arising solely from holding or owning such Security, or collecting principal and interest, if any, on, or the enforcement of, such Security) with the Republic of Panama or any other applicable Taxing Jurisdiction;
(2) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, the relevant Security was presented more than thirty days after the date the relevant payment is first made available for payment to the Holder or beneficial owner;
(3) any present or future Taxes imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any Paying Agentrelated law or administrative practices or procedures) is required implementing the foregoing or any agreements entered into pursuant to withhold or deduct Taxes under the laws current Section 1471(b)(1) of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor Code (or any Paying Agentamended or successor version described above);
(4) is so required to withhold any present or deduct future Taxes payable other than by deduction or withholding from payments under, or with respect to, any amount for Security;
(5) any present or on account of future Taxes imposed in connection with a Security presented for payment (where presentation is permitted or levied required for payment) by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such 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 any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of the Security to provide informationthe extent such Taxes could have been avoided by presenting the relevant Security to, documents or otherwise accepting payment from, another Paying Agent;
(6) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the failure to make any certification, identification or other evidence report concerning the nationality, residence, identity or connection with the Relevant Republic of Panama or any other applicable Taxing Jurisdiction of such the Holder or beneficial owner which is required of such Security or imposed by claim for relief or exemption, if making such a statutecertification, treatyidentification, regulation other report or administrative practice claim is, under the laws, rules or regulations of the Relevant Taxing Jurisdiction as any such jurisdiction, a precondition condition to relief or exemption from all or part of such tax, assessment or governmental charge;Taxes;
(c7) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment Tax or other governmental charge;duty; or
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of 8) any combination of Clauses (a)1) through (7) above; provided further, (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor that no such Additional Amounts shall be payable in respect of any Note or Subsidiary Guarantee to Security held by (x) any Holder who or beneficial owner that is a fiduciary or partnership or other than not the sole beneficial owner of such payment Security, or that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, but only to the extent that a beneficiary or settlor with respect to the fiduciary or a beneficial owner owner, partner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to any such Additional Amounts had such beneficiary the beneficiary, settlor, beneficial owner, partner or settlor or beneficial owner member been the Holder;
(g) direct holder of such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inSecurity, or (y) paid or accrued to any Holder that is not a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A resident of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect United States to the Notes;
(j) when extent that, had such withholding or deduction is required to be made by reason Holder been a resident of the Holder United States and eligible (taking into account any applicable limitation on benefits article or similar provision) for the beneficial owner of the Note concurrently being a shareholder of the Company or benefit of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement double taxation treaty between the United States and another jurisdiction facilitating the implementation thereof applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security, such Holder would not have been entitled to such Additional Amounts, or (z) any Holder that is a resident of the United States but that is not eligible for the benefit of any double taxation treaty between the United States and the applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security (but only to the extent the amount of such deduction or any fiscal or regulatory legislation, rules or practices implementing withholding exceeds that which would have been required had such an intergovernmental agreement) (any such withholding or deduction, Holder of a “FATCA Withholding”Security been so eligible and made all relevant claims). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will successor to the Company, as the case may be, agrees to indemnify and hold harmless each Holder of a Security and upon written request reimburse each Holder for the amount of (i) any Taxes levied or imposed and paid by such Holder of a Security (other than Excluded Taxes) as a result of payments made with respect to such Security, (ii) any liability (including penalties, interest and expenses) arising therefrom with respect thereto, and (iii) any Taxes (other than Excluded Taxes) with respect to payment of Additional Amounts or any reimbursement pursuant to this sentence, in each case, to the extent not otherwise reimbursed by the payment of any Additional Amount and not excluded from the requirement to pay Additional Amounts, as described above. The Company or any successor to the Company, as the case may be, shall also (i) make such withholding or deduction to the extent required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishor any successor to the Company, as the case may be, shall furnish the Trustee within 60 30 days after the date the payment of any such Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to evidencing the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available successor to the Holders upon requestCompany, as the case may be, or other evidence of such payment reasonably satisfactory to the Trustee. It is understood, however, that the Trustee is under no obligation to request such certified copies of tax receipts evidencing the payment. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Securities is due and payable, if the Company or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)those payments, the Company will shall deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and stating the amount so amounts that will be payable and will set setting forth such any other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes Securities on the payment date. Whenever in this Indenture or any Security there is mentioned, in any context, (a) the payment of principal (and the principal, premium, if any), (b) purchase prices or interest, or sinking fund or analogous payment, if any, in connection with a purchase respect of the Notes, (c) such Security or overdue principal or overdue interest or (d) any other amount payable on overdue sinking fund or with respect to any of the Notes or the Subsidiary Guaranteesanalogous payment, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section herein to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as thereof pursuant to the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic provisions of France or this Section and express mention thereof in any jurisdiction provisions hereof shall not be construed as excluding Additional Amounts in which a Paying Agent those provisions hereof where such express mention is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto not made (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveif applicable). The obligations of the Company or (and any Guarantor described in successor entity to the Company pursuant to Section 8.1) under this Section 4.19 will 10.5 shall survive any termination, defeasance or satisfaction and discharge the termination of this Indenture and the payment of all amounts under or with respect to the Securities.
(b) Each Holder of a Security, by acceptance of such Security, agrees that, with reasonable promptness after receiving written notice from the Company to the effect that such Hxxxxx is eligible for a refund in respect of Taxes actually paid by the Company pursuant to this Section 10.5, such Holder will sign and deliver, as reasonably directed by the Company, any transfer form provided to such Holder by the Company to enable such Holder to obtain a refund in respect of such Taxes; and if such Holder thereafter receives such refund in respect of such Taxes, such Holder will promptly pay such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority). If a Holder applies for a refund of such Taxes prior to a request by the Company to apply for such a refund, the Holder will, upon receipt of a request by the Company to apply for, or to turn over the proceeds of, any such refund, pay any such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority), promptly upon receipt of such refund. The Company shall pay all reasonable out-of-pocket expenses incurred by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction Holder in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which connection with obtaining such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinrefund.
Appears in 1 contract
Samples: Indenture (Carnival PLC)
Additional Amounts. (a) All payments made by or on behalf of that the Company or any Guarantor Issuers make under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and any other liability with respect similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) Issuer is then organized or is a resident for tax purposes or from or through which any of the foregoing makes any payment on the Notes or by or within any department or political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) such Issuer is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authorityof law. If the Company or any Guarantor (or any Paying Agent) an Issuer is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesNotes, the Company or any such Guarantor Issuer will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) cash (“Additional Amounts”) as may be necessary so to ensure that the net amount received by such each Holder (including of the Additional Amounts) Notes after such withholding or deduction (including withholding or deduction attributable to Additional Amounts payable hereunder) will not be less than the amount such the Holder would have received if such Taxes had not been withheld or deducted.
(b) Notwithstanding the foregoing, provided that no none of the Issuers will pay Additional Amounts will be payable with respect to any Notea Holder or beneficial owner of Notes:
(ai) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled Taxes giving rise to such Additional Amounts on surrendering such Note would not have been imposed but for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder Holder’s or beneficial owner to provide information, documents owner’s present or other evidence concerning the nationality, residence, identity or former connection with the Relevant Taxing Jurisdiction (other than a connection arising by reason of the acquisition, ownership, holding or Disposition of the Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under any Notes or the Indenture);
(ii) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the failure of the Holder or beneficial owner of Notes, following any Issuer’s written request addressed to the Holder, to the extent such Holder or beneficial owner which is legally entitled to do so, to comply with any certification, identification, information or other reporting requirements, whether required or imposed by a statute, treaty, regulation or administrative practice of the a Relevant Taxing Jurisdiction Jurisdiction, as a precondition to exemption from all from, or part reduction in the rate of such taxdeduction or withholding of, assessment or governmental charge;
(c) held Taxes imposed by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, (including, without limitation, such a certification that the Holder or beneficial owner being or having been a citizen or is not resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment thereinthe Relevant Taxing Jurisdiction);
(diii) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is Tax imposed or levied on a payment to a Luxembourg resident individual and is required to be made withheld pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) Sections 1471 through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), as of the date of the indenture (or otherwise imposed any amended or successor version of such sections that is substantively comparable), current or future Treasury Regulations issued thereunder or any official interpretation thereof, any agreement entered into pursuant to Sections 1471 through 1474 Section 1471(b)(1) of the Code as of the date of the indenture (or any regulations thereunder amended or official interpretations thereof) or an successor version described above), and any intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislationrelated governmental regulations, rules or practices official administrative practices) implementing such an intergovernmental agreementthe foregoing;
(iv) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any estate, inheritance, gift, sales, transfer or personal property tax or any similar Taxes;
(v) if such Holder is a fiduciary or partnership or person other than the sole beneficial owner of such payment and the Notes or the Subsidiary Guarantees, Taxes giving rise to such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to would not have been imposed on such payment had such Holder been the extentbeneficiary, that, in such context, Additional Amounts are, were partner or would be payable in respect thereof. The Company or a Guarantorsole beneficial owner, as the case may be, will pay any present of such Note (but only if there is no material cost or future stampexpense associated with transferring such Note to such beneficiary, court partner or documentary taxes sole beneficial owner and no restriction on such transfer that is outside the control of such beneficiary, partner or any other excise or property taxes, charges or similar levies that arise in sole beneficial owner);
(vi) to the United States, extent the Republic of France or in any jurisdiction in which a Paying Agent is located from Taxes giving rise to such Additional Amounts would not have been imposed but for the initial issue or registration of presentation by the Notes or on the enforcement holder of any payments with respect to the NotesNote, any Subsidiary Guaranteewhere presentation is required, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on a date more than 30 days after the Notes date on which payment became due and any department payable or any political subdivision the date on which payment thereof or therein.is duly provided for whichever occurs later; and
Appears in 1 contract
Samples: Indenture (Difl Us Ii LLC)
Additional Amounts. All payments made by or on behalf of the Company any Issuer or any Guarantor under or any successor in interest to any of the foregoing (each, a “Payor”) on or with respect to the Notes or the Subsidiary Guarantees any Guarantee will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (including without limitationcollectively, penalties, interest and any other liability with respect thereto) (“Taxes”) unless such withholding or deduction is required by law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of of:
(a) any jurisdiction in which (other than the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes United States or any political subdivision or governmental authority thereof or therein or any jurisdiction by having power to tax) from or through which payment on the Notes or any Guarantee is made by such Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(eachb) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a Payor that actually makes a payment on the Notes or its Guarantee is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax, (each of clause (a) and (b), a “Relevant Taxing Jurisdiction”), unless the Company or will at any Guarantor (or any Paying Agent) is time be required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment payments made under or with respect to the Notes or the Subsidiary Guaranteesany Guarantee, including payments of principal, redemption price, interest or premium, if any, the Company or any such Guarantor Payor will pay to each Holder of the Notes that are outstanding on the date of the required payment, (together with such payments) such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by such Holder (including the Additional Amounts) Holders or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amount such Holder amounts that would have been received if in respect of such Taxes had not been withheld payments on the Notes or deductedthe Guarantees in the absence of such withholding or deduction; provided, provided however, that no such Additional Amounts will be payable with respect to any Notefor or on account of:
(ai) surrendered by any Taxes that would not have been so imposed or levied but for the Holder existence of any present or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of former connection between the relevant Holder (or the beneficial owner on between a fiduciary, settlor, beneficiary, partner, member or prior to such due dateshareholder of, or possessor of power over, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder orrelevant Holder, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder is an estate, nominee, trust, partnership, limited liability company or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or the receipt of any payment in respect thereof;
(ii) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the Payor (such request being made at a time that would enable such holder acting reasonably to comply with that request) to make a declaration of nonresidence or beneficial owner any other claim or filing or satisfy any certification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by a statutethe applicable law, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold all or a part of any such tax, assessment or governmental chargeTaxes);
(ciii) held any Taxes that are payable otherwise than by withholding from a payment on the Notes or any Guarantee;
(iv) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(v) any Taxes that are required to be deducted or withheld on a payment pursuant to the Directive or any law implementing, or introduced in order to conform to, the Directive;
(vi) any Taxes imposed in connection with a Note presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another paying agent in a member state of the European Union;
(vii) any Taxes imposed pursuant to the Directive, or any law implementing or complying with, or introduced in order to conform to, the Directive;
(viii) any Taxes payable under Sections 1471 through 1474 of the Code, as of the date of the Offering Circular (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements (including any intergovernmental agreements) entered into pursuant thereto; or
(ix) any combination of the above. Such Additional Amounts will also not be payable (x) 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) within 30 days after the relevant payment was first made available for payment to the Holder or (y) where, had the beneficial owner who is liable for Taxes in respect of such the Note by reason been the Holder of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any payment of Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A any of the French Code général des impôts;
clauses (i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(jviii) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) inclusive above. Notwithstanding The Payor will (1) make any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (2) remit the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The Company Upon request, the Payor will furnish, within 60 days after the date use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes is due pursuant to applicable law, so deducted or withheld from each relevant taxing authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. If, copies notwithstanding the efforts of tax such Payor to obtain such receipts, the same are not obtainable, such Payor will provide the Trustee with other reasonable evidence. Such receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been other evidence will be made available by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon on request. At If any Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to each the date on which any payment under or with respect of such payment, the Payor will deliver to the Notes or Trustee an Officer’s Certificate stating the Subsidiary Guarantees is due fact that Additional Amounts will be payable and payable, if the Company or any Guarantor becomes obligated amount so payable and such other information necessary to enable the Paying Agent to pay Additional Amounts with respect to such Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises after the 30th day less than 45 days prior to the date on which relevant payment under or with respect to the Notes or the Subsidiary Guarantees is due and payabledate, in which case it will be paid promptly thereafter the Payor shall deliver such Officer’s Certificate and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary promptly as practicable after the date that is 30 days prior to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date, but no less than five Business Days prior thereto, and otherwise in accordance with the requirements of DTC). Whenever Wherever in this Indenture Indenture, the Notes or any Guarantee there is mentioned, in any context, :
(a1) the payment of principal principal,
(and premium, if any), (b2) redemption prices or purchase prices in connection with a redemption or purchase of the Notes,
(3) interest, or
(c) interest or (d4) any other amount payable on or with respect to any of the Notes or the Subsidiary Guaranteesany Guarantee, such mention is reference shall be deemed to include mention of the payment of Additional Amounts provided for as described in this section Section 2.15 to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, Payor will pay any present or future stamp, court or documentary taxes Taxes, or any other excise or excise, property taxes, charges or similar levies Taxes that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial issue resale, registration or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the this Indenture or any other documents related document or instrument in relation thereto (limited, in case other than a transfer of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveNotes). The foregoing obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer a Payor is organized or any Guarantor is incorporated, engaged in business for tax purposes or otherwise considered to be a resident for tax Tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision or taxing authority or agency thereof or therein. The Issuers and the Guarantors shall ensure that no proceeds raised under the Notes will be used in a manner which would constitute a “use of proceeds in Switzerland” as interpreted by Swiss tax authorities for the purposes of Swiss Withholding Tax (Verrechnungssteuer), except and to the extent that a written confirmation or tax ruling countersigned by the Swiss Federal Tax Administration (Eidgenössische Steuerverwaltung) has been obtained confirming that the intended “use of proceeds in Switzerland” if guaranteed by a Swiss resident Guarantor does not result in the Notes qualifying as a Swiss notes issue for Swiss Withholding Tax purposes.
Appears in 1 contract
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor Issuers under or with respect to the Notes or the (including any payments by a Subsidiary Guarantees will Guarantor) shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or on behalf of the Government of Canada or any province or territory thereof or by any authority or agency therein or thereof having power to tax or any other jurisdiction in which the Company an Issuer or any Subsidiary Guarantor (including any successor entities) is then organized organized, or is otherwise carrying on business in, or is otherwise resident for tax purposes or any political subdivision thereof or therein purposes, or any jurisdiction by from or through which payment is made made, excluding the United States (each, each a “Relevant Taxing Jurisdiction”), ) unless the Company an Issuer or any Subsidiary Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authority. thereof.
(b) If the Company an Issuer or any Subsidiary Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes Notes, such Issuer or the Subsidiary Guarantees, the Company or any such Guarantor will shall be required to pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder a holder or beneficial owner of Notes (including the Additional Amounts) after such withholding or deduction will shall not be less than the amount such Holder holder would have received if such Taxes including Taxes or Additional Amounts had not been withheld or deducted; provided, provided however, that no the foregoing obligation to pay Additional Amounts will be payable to a Holder (such Holder, an “Excluded Holder”) does not apply with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of to: (1) any Taxes that would not have been so imposed but for the date on which such payment first became due and (2) if the full amount payable has not been received by existence of any present or on behalf of former connection between the relevant Holder holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over the Note with a request addressed to such Holder relevant holder or beneficial owner, if the relevant holder or beneficial owner to provide informationis an estate, documents nominee, trust, partnership, limited liability company or other evidence concerning the nationality, residence, identity or connection with corporation) and the Relevant Taxing Jurisdiction (other than a connection from the mere acquisition, ownership or holding of such Holder notes or a beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder interest therein or the beneficial owner who is liable for Taxes in respect enforcement of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, rights thereunder or the receipt of payments made by or on behalf of the Company or any Guarantor payment in respect thereof or thereof); (2) Canadian withholding taxes imposed on any Subsidiary Guarantee, including, without limitation, such Holder payment made to any holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
of the Notes with which an Issuer does not deal at arm’s length (dwithin the meaning of the Income Tax Act (Canada)) on account at the time of making such payments; (3) any estate, inheritance, gift, salesales, excise, transfer, use, personal property tax or other similar tax, assessment or other governmental charge;
; (e4) except in any Taxes payable otherwise than by deduction or withholding from payments on the case Notes; (5) any Taxes imposed because the relevant holder or beneficial owner of the winding up Note fails to complete, execute and deliver any form or document to the extent applicable to such holder or beneficial owner that may be required by law or by reason of administration of such law to enable an Issuer or any Subsidiary Guarantor to make payments on the Notes without deduction or withholding for Taxes, or with deduction or withholding of a lesser amount; (6) any Taxes that would not have been imposed if the holder or beneficiary of the Company or any Guarantor, any payment had presented the Note surrendered for payment in within 30 days after the Republic date on which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the holder would have been entitled to Additional Amounts had the Note been presented on the last day of France;
such 30-day period); (f7) as a result of any combination of (a), (b), (c), (d) or (e) or Taxes that were imposed with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any a Note or Subsidiary Guarantee to any Holder holder who is a fiduciary partnership, limited liability company or partnership or any person other than the sole beneficial owner of such payment payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or limited liability company or the beneficial owner of such payment would not have been entitled to any the Additional Amounts had such beneficiary or settlor beneficiary, settlor, member or beneficial owner been the Holder;
actual holder of such Note; or (g) such withholding 8) any withholdings or deduction is deductions imposed or levied on a payment to a Luxembourg resident an individual and is that are required to be made pursuant to the Luxembourg European Union Directive 2003/48/EC (as amended from time to time) or any law of 23 December 2005;
(h) when implementing or complying with, or introduced in order to conform to, such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inDirective, or (y9) paid or accrued to any Taxes that would not have been imposed but for a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A combination of the French Code général des impôts;foregoing.
(ic) in case of Taxes which are payable otherwise than by withholding Such Issuer or deduction from a payment made under Subsidiary Guarantor shall pay the amount withheld or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant governmental authority on a timely basis in accordance with applicable law. The Company will furnishAs soon as practicable, within 60 days after the date Issuers shall provide the Trustee with official receipts or other documentation evidencing the payment of any the Taxes is due pursuant with respect to applicable law, to the Trustee, copies of tax receipts which Additional Amounts are paid.
(to the extent received from the relevant tax authorities in the usual course or as generally providedd) evidencing that such payment has been made by the Company If either Issuer or any Guarantor. The Trustee will make such evidence available Subsidiary Guarantor is or shall become obligated to pay Additional Amounts under or with respect to any payment made on any of the Holders upon request. At Notes or a Note Guarantee, at least 30 days prior to each the date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to of such payment (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payablesuch date, in which case it will shall be paid promptly thereafter and in any case before the relevant payment datethereafter), such Issuer or Subsidiary Guarantor, as the Company will case may be, shall deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will shall be payable, payable and the amount so payable and will set forth such other information as necessary to enable such the Paying Agent to pay such remit Additional Amounts to the Holders of the Notes holders on the relevant payment date. .
(e) Whenever in this Indenture there is mentioned, mentioned in any context, : (a1) the payment of principal principal; (and premium, if any), (b2) redemption prices or purchase prices in connection with a purchase redemption or repurchase of the Notes, ; (c3) interest interest; or (d4) any other amount payable on or with respect to any of the Notes or the Subsidiary Guaranteesany Note Guarantee, such mention is reference shall be deemed to include mention of the payment of Additional Amounts provided for in as described under this section Section 2.13 to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(f) The Company Issuers and the Subsidiary Guarantors shall indemnify a holder or beneficial owner of notes (other than an Excluded Holder) for the full amount of any Taxes (including for greater certainty, Taxes payable pursuant to Section 803 of the regulation to the Income Tax Act (Canada)) paid by such holder to a Guarantorgovernmental authority of a Relevant Taxing Jurisdiction, as the case may be, will on or with respect to any payment by either Issuer or any Subsidiary Guarantor on account of failure to satisfy any obligation of either Issuer or any Subsidiary Guarantor to withhold or deduct Taxes for which such Issuer or Subsidiary Guarantor would have been obliged to pay Additional Amounts hereunder.
(g) The Issuers shall pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located Relevant Taxing Jurisdiction from the initial issue execution, delivery, enforcement or registration of the Notes Notes, this Indenture or on any other document or instrument in relation thereof, or the enforcement receipt of any payments with respect to the Notes, Notes (including any payments by a Subsidiary Guarantee, the Indenture or any other documents related thereto Guarantor).
(limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (ah) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will 2.13 shall survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinIndenture.
Appears in 1 contract
Additional Amounts. (a) All payments made by or on behalf of the Company Issuer or any Guarantor of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or the Subsidiary Guarantees will any Note Guarantee shall be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxTaxes unless the withholding or deduction of such Taxes is then required by law. If the Issuer, duty, levy, impost, assessment any Guarantor or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction in which the Company Issuer or any Guarantor (including any successor entities) is then or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction by from or through which any payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a Relevant Taxing Jurisdiction from “Tax Jurisdiction”) in respect of any payment made payments under or with respect to the Notes or the Subsidiary Guaranteesany Note Guarantee, including, without limitation, payments of principal, Redemption Price, purchase price, interest or premium, the Company Issuer or any such Guarantor will the relevant Guarantor, as applicable, shall pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by such each Holder (including the Additional Amounts) after such withholding or deduction will not be less than equal the amount such Holder respective amounts that would have been received if by each Holder in respect of such Taxes had not been withheld payments in the absence of such withholding or deducteddeduction; provided, provided however, that no Additional Amounts will shall be payable with respect to any Noteto:
(ai) surrendered by any Taxes, to the Holder extent such Taxes would not have been imposed but for the holder or the beneficial owner thereof for payment of principal more than 30 days after the later Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of a power over, the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder orowner, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such relevant Holder or beneficial owner to provide informationis an estate, documents trust, nominee, partnership, limited liability company or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(ccorporation) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being national of, or having been present or incorporated, engaged in a trade or business therein in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, this Indenture or a permanent establishment thereinNote Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(dii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on account the last day of such 30 day period);
(iii) any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental chargeTaxes;
(eiv) except in any Taxes payable other than by deduction or withholding from payments under, or with respect to, the case of the winding up of the Company Notes or any Guarantor, any Note surrendered for payment in the Republic of FranceGuarantee;
(fv) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the Holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the Holder at least 30 days before any such withholding or deduction would be imposed, 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 result precondition to exemption from, or reduction in the rate of any combination of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (aincluding, 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;
(b)vi) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a Holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(c), (dvii) or (e) any Taxes imposed on or with respect to any payment made by the Issuer or on behalf any of the Company or any Guarantor in respect Guarantors to the Holder of any Note or Subsidiary Guarantee to any the Notes if such 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 or beneficial owner such Taxes would not have been entitled to any Additional Amounts imposed on such payments had such beneficiary or settlor or Holder been the sole beneficial owner been the Holderof such Note;
(gviii) such withholding any Taxes imposed by the United States, any state thereof or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law District of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inColumbia, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State any subdivision thereof or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of thereof, including any U.S. federal withholding taxes and any Taxes which that are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to current Sections 1471 through 1474 of the Code or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any regulations thereunder related law or official interpretations thereofadministrative practices or procedures) implementing the foregoing or an intergovernmental agreement between any agreements entered into pursuant to current Section 1471(b)(1) of the United States and another jurisdiction facilitating the implementation thereof Code (or any fiscal amended or regulatory legislationsuccessor version described above); or
(ix) any combination of clauses (i) through (viii) above. In addition to the foregoing, rules the Issuer and the Guarantors will also pay and indemnify the holder for any present or practices implementing such an intergovernmental agreementfuture stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, this Indenture, any Note Guarantee or any other document referred to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Notes or any Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments or that are imposed on or result from a sale or other transfer or disposition of a Note by a Holder or a beneficial owner, to any such withholding Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (i) through (iii) or deduction(v) through (ix) above or any combination thereof), save in each case for any such taxes, charges or levies which arise or are increased as a “FATCA Withholding”). Neither result of any document effecting the Company nor registration, issue or delivery of any other person, including of the notes either being signed or executed in the United Kingdom or being brought into the United Kingdom.
(b) If the Issuer or any Guarantor, as the case may be, becomes aware that it will be required obligated to pay any Additional Amounts with respect to any payment under or with respect to the Notes or any Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 respect of FATCA Withholdingwhich case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Company Officer’s Certificates must also set forth any other information reasonably necessary to enable the Paying Agents to pay Additional Amounts to Holders on the relevant payment date. The Issuer or any the relevant Guarantor will also provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, shall make such withholding or deduction all withholdings and deductions (within the time period) required by law and shall remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Company will furnishIssuer or the relevant Guarantor shall 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 shall furnish to the Trustee (or to a Holder of the Notes upon request), within 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant 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 applicable lawobtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee, copies of tax receipts ) by such entity.
(to the extent received from the relevant tax authorities in the usual course or as generally providedd) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture or the Notes there is mentioned, in any context, (a) the payment of amounts based upon the principal (and premium, if any), (b) purchase prices in connection with a purchase amount of the NotesNotes or of principal, (c) interest or (d) of any other amount payable on under, or with respect to to, any of the Notes or the Subsidiary Guaranteesany Note Guarantee, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto .
(limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (ae) through (k) above). The obligations of the Company or any Guarantor described in this This Section 4.19 will 4.12 shall survive any termination, defeasance or satisfaction and discharge of this Indenture or Indenture, any transfer by a holder Holder or beneficial owner of its notesNotes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (or any Guarantor Guarantor) is incorporated, engaged in business for tax purposes business, organized or resident for tax purposes purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person makes any payment on the Notes and any department or and, in each case, any political subdivision thereof or therein.
Appears in 1 contract
Additional Amounts. All payments made by or on behalf of the Company Issuer or any Guarantor under or with respect to on the Notes or the Subsidiary Guarantees Securities will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitationcharge, and any penalties, interest and any other liability or additions to tax with respect thereto) thereto (collectively, “Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) withholding of such Taxes is required to withhold by law or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the official interpretation or administration thereof by the relevant taxing authoritythereof. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect The Issuer will, subject to the Notes or the Subsidiary Guaranteesexceptions and limitations set forth below, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be are necessary so in order that the net amount of such payments received by such a Holder (including who is not a United States person for United States federal income tax purposes, after deduction by any applicable withholding agent for any present or future Taxes of any Relevant Taxing Jurisdiction, imposed by withholding with respect to the Additional Amounts) after such withholding payment by or deduction on behalf of the Issuer, will not be less than the amount such Holder that would have been received if in respect of such Taxes had not been withheld payments in the absence of such withholding or deducteddeduction; provided, provided however, that no the foregoing obligation to pay Additional Amounts will be payable with respect shall not apply:
(1) to any NoteTaxes that are imposed or withheld solely by reason of the Holder or beneficial owner, or a fiduciary, settlor, beneficiary, member or shareholder 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:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein in the United States or having or having had a permanent establishment thereinin the United States;
(b) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Securities, the receipt of payment or the enforcement of any rights under the Securities), including being or having been a citizen or resident of the United States;
(c) being or having been a foreign or domestic personal holding company, a passive foreign investment company or a controlled foreign corporation with respect to the United States or a corporation that has accumulated earnings to avoid United States federal income tax;
(d) on account being or having been a “10-percent shareholder” of the obligor under the Securities within the meaning of section 871(h)(3) of the Code or any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;successor provision; or
(e) except being or having been a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the case ordinary course of its trade or business, as described in section 881(c)(3)(A) of the winding up of the Company Code or any Guarantor, any Note surrendered for payment in the Republic of Francesuccessor provision;
(f2) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who that is a fiduciary or partnership or other than not the sole beneficial owner of such payment the Securities, or a portion thereof, or that is a fiduciary or partnership, but only to the extent that a beneficiary or settlor or with respect to the fiduciary, a beneficial owner or member of the partnership would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(3) to any Additional Amounts had such beneficiary Taxes that are imposed or settlor withheld solely by reason of the failure of the Holder or beneficial owner been to comply with certification, identification or information reporting requirements concerning the Holdernationality, residence, identity or connection with a Relevant Taxing Jurisdiction of the Holder or beneficial owner of such Securities, if compliance is required by statute or by regulation of the Relevant Taxing Jurisdiction as a precondition to a reduction in or exemption from such Taxes (including the submission of an applicable United States Internal Revenue Service Form W-8 (with any required attachments)); provided that the applicable Holder or beneficial owner would be legally eligible for such reduction or exemption upon providing the required documentation in compliance with such requirements;
(g4) such withholding or deduction is to any Taxes that are imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notespayment;
(j5) when such withholding to any estate, inheritance, gift, sales, transfer, personal property, wealth or deduction is similar tax, assessment or governmental charge;
(6) to any Taxes required to be withheld by any Paying Agent from any payment on any Security, if such payment can be made without such withholding by any other Paying Agent;
(7) to any Taxes that are imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of such Securities for payment on a date more than 30 days after the date on which such payment became due and payable, except to the extent that the Holder or the beneficial owner of thereof would have been entitled to Additional Amounts had the Note concurrently being a shareholder of the Company or of notes been presented for payment on any Guarantor; ordate during such 30 day period;
(k) Any combination of items (a) through (j) above. Notwithstanding 8) to any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding Taxes that are imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed withheld pursuant to Sections 1471 through 1474 of the Code Code, as of the Issue Date (or any regulations thereunder amended or successor provision that is substantively comparable and not materially more onerous to comply with), any U.S. Treasury Regulations promulgated thereunder, any official interpretations thereof) , any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States and another jurisdiction facilitating implementing the implementation thereof foregoing, or any agreements entered into pursuant to Section 1471(b)(1) of the Code, as of the Issue Date (or any fiscal amended or regulatory legislation, rules or practices implementing such an intergovernmental agreementsuccessor provision described above); or
(9) in the case of any combination of any items (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding1) through (8). The Company Issuer, the relevant Guarantor or any Guarantor other applicable withholding agent will also make such withholding or deduction 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 Company If the Issuer or the relevant Guarantor is the applicable withholding agent, the Issuer or the relevant Guarantor will furnish(i) use its commercially reasonable efforts to obtain tax receipts from each tax authority evidencing the payment of any Taxes so deducted or withheld and (ii) furnish to the Trustee (or to a Holder upon written request), within 60 days a reasonable time after the date the payment of any Taxes so deducted or withheld is due pursuant 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 applicable lawobtain receipts, receipts are not available, other evidence of payments (reasonably satisfactory to the Trustee) by such entity. If the Issuer or the relevant Guarantor is not the applicable withholding agent, copies of the Issuer or the relevant Guarantor will use its reasonable efforts to obtain tax receipts (or other evidence of payments from the applicable withholding agent and furnish the tax receipts or evidence of payments to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment dateTrustee. Whenever in this Indenture there is mentioned, in any context, (a) the payment of amounts based upon the principal (and premium, if any), (b) purchase prices in connection with a purchase amount of the NotesSecurities or of principal, (c) interest or (d) of any other amount payable on under, or with respect to to, any of the Notes or the Subsidiary GuaranteesSecurities, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The foregoing obligations of the Company or any Guarantor described in this Section 4.19 4.23 will survive any termination, defeasance or satisfaction and discharge of this Indenture or Indenture, any transfer by a holder Holder or beneficial owner of its notesSecurities, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes Securities and any department or any political subdivision thereof or therein.
Appears in 1 contract
Samples: Indenture (Scientific Games Corp)
Additional Amounts. (a) All payments made by or on behalf of the Company Issuer or any Guarantor (each a “Payor”) under or with respect to the Notes Debentures or the Subsidiary Guarantees any Debenture Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) Taxes imposed or levied by or on behalf of any jurisdiction in which the Company such Payor is organized, resident or any Guarantor (including any successor entities) is then organized or resident carrying on business for tax purposes or from or through which such Payor (or its agents) makes any payment on the Debentures or any Debenture Guarantee or any department or political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) such Payor is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authoritythereof. If the Company or any Guarantor (or any Paying Agent) a Payor is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company Debentures or any Debenture Guarantee, such Guarantor Payor, subject to the exceptions set forth in Section 2.6(b), will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so such that the net amount received in respect of such payment by such each Holder (including the Additional Amounts) or Beneficial Holder after such withholding or deduction (including withholding or deduction attributable to Additional Amounts payable hereunder but excluding Taxes on net income) will not be less than the amount such the Holder or Beneficial Holder, as the case may be, would have received if such Taxes had not been required to be so withheld or deducted.
(b) Notwithstanding Section 2.6(a), provided that no a Payor will not, however, pay Additional Amounts will be payable to a Holder or Beneficial Holder with respect to any Noteof the following Taxes imposed on or with respect to a Holder or Beneficial Holder or required to be withheld or deducted from a payment to a Holder or Beneficial Holder:
(ai) surrendered Taxes imposed on or measured by the net income (however denominated), franchise Taxes and branch profits Taxes, in each case (i) imposed as a result of such Holder or Beneficial Holder being organized under the beneficial owner thereof laws of, having a business office located in, or being a resident of the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes;
(ii) in the case of a Holder or Beneficial Holder, withholding Taxes imposed on amounts payable to or for payment the account of principal more than 30 days after the later of (1) such Holder or Beneficial Holder with respect to an applicable interest in an Indenture Obligation pursuant to a law in effect on the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or Beneficial Holder acquires such interest in the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day periodIndenture Obligation;
(biii) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed Taxes attributable to such Holder or beneficial owner Beneficial Holder’s failure to comply with a request from the Trustee to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to tax exemption from all or part of such tax, assessment or governmental chargecertificate;
(civ) held by or on behalf of a Holder or the beneficial owner who is liable for any withholding Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment thereinimposed under FATCA;
(dv) any Canadian withholding Taxes imposed under the Tax Act on any amount paid or credited, or deemed as paid or credited, by or on account of any estate, inheritance, gift, sale, transfer, personal property obligation of the Issuer under this Indenture (i) to a Holder or Beneficial Holder or recipient with which the Payor does not deal at arm’s length (for the purposes of the Tax Act) at the time of making such payment or (ii) in respect of a debt or other similar taxobligation to pay an amount to a Holder or Beneficial Holder or recipient with whom the Payor is not dealing at arm’s length (for the purposes of the Tax Act) at the time of such payment (other than where, assessment or other governmental charge;
(e) except in the case of the winding up of foregoing clauses (i) or (ii), the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) non-arm’s length relationship arises as a result of such Holder or Beneficial Holder or recipient having become a party to, received or perfected a security interest under or received or enforced any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company rights under this Indenture or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the HolderDebenture Document);
(gvi) such any Canadian withholding Taxes imposed under the Tax Act on any amount paid or deduction is imposed credited, or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding deemed as paid or deduction is required to be made credited, by any Holder or Beneficial Holder or recipient by reason of that interest such Holder or Beneficial Holder or recipient (i) being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a “specified non-cooperative State or territory resident shareholder” (Etat ou territoire non-coopératif) as defined in Article 238-0 A subsection 18(5) of the French Code général des impôts;
(iTax Act) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder Issuer or (ii) not dealing at arm’s length (for the beneficial owner purposes of the Note concurrently being Tax Act) with a shareholder “specified non-resident shareholder” (as defined in subsection 18(5) of the Company or Tax Act) of any Guarantorthe Issuer; or
(kvii) Any any combination of the foregoing items (ai) through (j) above. Notwithstanding any other provision of this Indenturevi); (collectively, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “CodeExcluded Taxes”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code .
(or any regulations thereunder or official interpretations thereofc) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 calendar days prior to each date on which any payment under or with respect to the Notes Debentures or the Subsidiary Guarantees any Debenture Guarantee is due and payable, if the Company or any Guarantor becomes a Payor will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th 35th day prior to the date on which such payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment datethereafter), the Company Payor will deliver to each Paying Agent the Trustee an Officers’ Officer’s Certificate stating the fact that such Additional Amounts will be payable, payable and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned.
(d) The Payors, in jointly and severally, will indemnify and hold harmless the Holders and Beneficial Holders and, upon written request of any contextHolder or Beneficial Holder, reimburse such Holder or Beneficial Holder for the amount of (ai) the payment of principal (any Taxes levied or imposed by a Relevant Taxing Jurisdiction and premium, if any), (b) purchase prices payable by such Holder or Beneficial Holder in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on payments made under or with respect to the Debentures held by such Holder or Beneficial Holder and (ii) any Taxes levied or imposed with respect to any reimbursement under the foregoing clause (i) or this clause (ii), so that the net amount received by such Holder or Beneficial Holder after such reimbursement will not be less than the net amount such Holder or Beneficial Holder would have received if the Taxes giving rise to the reimbursement described in clauses (i) and/or (ii) had not been imposed; provided, however, that the indemnification or reimbursement obligations provided for in this clause (d) shall not extend to Taxes for which the applicable Holder or Beneficial Holder would not have been eligible to receive payment of Additional Amounts hereunder by virtue of clauses (i) through (vii) of Section 2.6(b) if the Payor had been required to withhold from such payments or to the extent such Holder or Beneficial Holder received Additional Amounts with respect to such payments.
(e) In addition, the Payor will pay any stamp, issue, registration, court, documentation, excise or other similar taxes, charges and duties, including any interest, penalties and any similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction at any time in respect of the Notes execution, issuance, registration or delivery of the Subsidiary GuaranteesDebentures, any Debenture Guarantee or any other document or instrument referred to thereunder and any such mention is deemed taxes, charges or duties imposed by any Relevant Taxing Jurisdiction on any payments made pursuant to include mention the Debentures or any Debenture Guarantee or as a result of, or in connection with, the enforcement of the Debentures, any Debenture Guarantee and/or any other such document or instrument.
(f) If a Holder or Beneficial Holder determines, acting reasonably and in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.6 (including by the payment of Additional Amounts provided for Amounts), or that, because of the indemnification, it has benefited from a reduction in this section Excluded Taxes otherwise payable by it, it shall pay to the extentindemnifying party an amount equal to the refund or reduction (but only to the extent of the indemnification and payment of Additional Amounts), that, in such context, Additional Amounts are, were net of all out-of-pocket expenses of the Holder or would be payable in respect thereof. The Company or a GuarantorBeneficial Holder, as the case may be, will and without interest (other than any net after Tax interest paid by the relevant Governmental Entity with respect to any such refund). The indemnifying party, upon the request of the indemnified party, shall repay to the indemnified party the amount paid over pursuant to this Section 2.6(f) (plus any penalties, interest or other charges imposed by the relevant Governmental Entity) if the indemnified party is required to repay the refund or reduction to the Governmental Entity. Notwithstanding anything to the contrary in this Section 2.6(f), in no event shall the indemnified party be required to pay any present amount to an indemnifying party pursuant to this Section 2.6(f) the payment of which would place the indemnified party in a less favourable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund or future stampreduction had not been deducted, court withheld or documentary taxes otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section shall not be construed to require any indemnified party to make available its tax returns (or any other excise information relating to its Taxes that it deems confidential) to the indemnifying party or property taxesto any other Person, charges or similar levies that arise in the United States, the Republic of France or to arrange its affairs in any particular manner or to claim any available refund or reduction.
(g) Any Holder or Beneficial Holder that is entitled to an exemption from or reduction of withholding tax under the Relevant Taxing Jurisdiction, or any treaty to which that jurisdiction in which is a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments party, with respect to payments under the Notes, any Subsidiary Guarantee, the Indenture Debentures or any other documents related thereto (limitedDebenture Guarantee shall, in case at the request of Taxes attributable the Payor, deliver to the receipt of payments theretoPayor (with a copy to the Trustee), to any such Taxes imposed at the time or withheld in a times prescribed by the Relevant Taxing Jurisdiction or reasonably requested by the Payor, all properly completed and executed documentation prescribed by the Relevant Taxing Jurisdiction that are will permit the payments to be made without withholding or at a reduced rate of withholding. In addition any Holder or Beneficial Holder, if requested by the Payor, shall deliver other documentation prescribed by the Relevant Taxing Jurisdiction or reasonably requested by the Payor that will enable the Payor to determine whether or not excluded under clauses that Holder or Beneficial Holder is subject to withholding or information reporting requirements and (aii) through any Holder or Beneficial Holder shall notify the Payor in writing within five (k5) above). Business Days of ceasing to be, or to be deemed to be, resident in a jurisdiction.
(h) The obligations of the Company or any Guarantor described in under this Section 4.19 2.6 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any successor Person to any Payor and to any jurisdiction in which any such successor Person to the Issuer is organized or any Guarantor is incorporated, engaged in otherwise resident or doing business for tax purposes or resident for tax purposes or any jurisdiction from or through which payment is made by such Person makes successor or its respective agents. Whenever this Indenture refers to, in any context, the payment on of the Notes Standby Fee, principal, Premium and any department interest or any political subdivision thereof other amount payable under or thereinwith respect to any Debenture, such reference shall include the payment of Additional Amounts or indemnification payments as described in this Section 2.6, if applicable.
Appears in 1 contract
Samples: Trust Indenture (High Tide Inc.)
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the by any Guarantor under or with respect to its Subsidiary Guarantees will Guarantee shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), Taxes unless the Company or any such Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof of the law by the relevant taxing authorityTaxing Authority. If the Company or any Guarantor (or any Paying Agent) Guarantor, as the case may be, is so required to withhold or deduct any amount for for, or on account of of, Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, as the case may be, the Company or any such Guarantor will Guarantor, as the case may be, shall pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (each holder of Notes, including the Additional Amounts) , after such withholding or deduction (including any withholding or deduction in respect of Additional Amounts) will not be less than the amount such Holder the holder would have received if such Taxes had not been withheld or deducted, ; provided that no Additional Amounts will be payable with respect to a payment made to a holder of Notes (to the extent any Note:of the following exceptions apply, an “Excluded Holder”):
(a1) surrendered with whom the Company or such Guarantor, as the case may be, does not deal at arm’s length, within the meaning of the Income Tax Act (Canada), at the time of making such payment;
(2) who is subject to the Taxes in question by reason of its being connected at any time with the jurisdiction imposing such Taxes otherwise than by the Holder mere acquisition or holding of the Notes or the beneficial owner thereof receipt of payments thereunder or the enforcement of its rights thereunder;
(3) who presents any Note for payment of principal more than 30 60 days after the later of (1x) the date on which such payment first became due and (2y) if the date on which the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, Trustee and notice to that effect shall have been given to the Holders by the Trustee, except to the extent that the Holder or the beneficial owner holder would have been entitled to such Additional Amounts on surrendering presenting such Note for payment on any the last day during of the applicable 3060-day period;
(b4) if any tax, assessment or other governmental charge that is imposed or withheld subject to such Taxes by reason of the its failure to comply by the Holder orwith any certification, if differentidentification, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents documentation or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which reporting requirement if compliance is required or imposed by a statutelaw, treatyregulation, regulation or administrative practice of the Relevant Taxing Jurisdiction or any applicable treaty as a precondition to exemption from all from, or part a reduction in the rate of deduction or withholding of, such taxTaxes, assessment or governmental chargebut only to the extent such holder was legally able to comply with such requirement(s);
(c5) held by that is a fiduciary, a partnership or on behalf of a Holder or not the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any payment on a Note, or if and to the receipt extent that, as a result of payments made by or on behalf of an applicable tax treaty, no Additional Amounts would have been payable had the Company or any Guarantor in respect thereof or any Subsidiary Guaranteebeneficiary, including, without limitation, such Holder partner or beneficial owner being owned the Notes directly (but only if there is no material cost or having been a citizen expense associated with transferring such Notes to such beneficiary, partner or resident thereof beneficial owner and no restriction on such transfer that is outside the control of such beneficiary, partner or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;beneficial owner); or
(d6) on account any combination of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;the foregoing numbered clauses in this proviso.
(eb) except in the case of the winding up of the The Company or any Guarantor, any Note surrendered for payment in as the Republic of France;case may be, will also:
(f1) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any make such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and accordance with applicable law;
(2) remit the full amount deducted or withheld to the relevant authority Taxing Authority, in accordance with applicable law. The Company will furnish; and
(3) furnish to the Trustee or cause to be furnished to the Trustee, within 60 30 days after the date the payment of any Taxes is due pursuant to under applicable law, to the Trustee, certified copies of tax Tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that other evidence of such payment has been made by the Company or any such Guarantor, as the case may be, in such form as provided in the normal course by the taxing authority imposing such Taxes and is reasonably available to the Company or such Guarantor, as the case may be. The Trustee will shall make such evidence available to the Holders of the Notes upon request. If Additional Amounts are paid to a holder, and it is subsequently determined that such Person was not entitled to such Additional Amounts, then such Person shall promptly refund to the Company or such Guarantor, as the case may be, the amount of all such Additional Amounts previously paid to such Person. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)payment, the Company will shall deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, payable and specifying the amount so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes holders on the payment date.
(c) The Company and each Guarantor shall upon written request of any holder of Notes (other than an Excluded Holder), reimburse each such holder for the amount of:
(1) any Taxes so required to be withheld or deducted which are levied or imposed on and paid by such holder as a result of payments made under or with respect to the Notes or the Subsidiary Guarantees, as the case may be; and
(2) any such Taxes so levied or imposed with respect to any reimbursement under clause (1) above so that the net amount received by such holder after such reimbursement will not be less than the net amount the holder would have received if the Taxes described in clause (1) and (2) above had not been imposed.
(d) The Company or a Guarantor shall pay any present or future stamp, court, documentary or other similar Taxes, charges or levies that arise in any Taxing Jurisdiction from the execution, delivery or registration of, or enforcement of rights under, the Notes, any Subsidiary Guarantees, this Indenture or any related document (“Documentary Taxes”).
(e) The obligation to pay Additional Amounts (and any associated reimbursement) and Documentary Taxes under the terms and conditions described above will survive any termination, defeasance or discharge of this Indenture. Whenever in this Indenture there is mentioned, in any context, (ai) the payment of principal (and premium, if any), (bii) purchase prices in connection with a purchase of the Notes, (ciii) interest or (div) any other amount payable on or with respect to any of the Notes or the Subsidiary GuaranteesNotes, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section Section 4.19 to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(f) The Company or a Guarantormay redeem, as the case may beat its option, will pay in whole but not in part at any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United Statestime, the Republic of France or in any jurisdiction in which Notes at a Paying Agent is located from the initial issue or registration redemption price equal to 100% of the Notes or on the enforcement of any payments with respect principal amount, plus accrued and unpaid interest to the NotesRedemption Date, any Subsidiary Guarantee, if the Indenture or any other documents related thereto (limited, in case of Taxes attributable Company determines and certifies to the receipt Trustee immediately prior to the giving of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction the notice of redemption that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described has or will become obligated to pay, on the next date on which any amount would be payable with respect to the Notes or the Subsidiary Guarantees, any Additional Amounts in this Section 4.19 will survive respect of the Notes as a result of any terminationchange in, defeasance or satisfaction and discharge of this Indenture amendment to, the laws or regulations (or any transfer rules promulgated thereunder) of any Taxing Jurisdiction, or any change in, or amendment to, any administrative or other official position regarding the application or interpretation of such laws, regulations or rules (including, without limitation, a ruling by a holder court of competent jurisdiction), which change or beneficial owner amendment is announced on or after the Issue Date; provided that the Company or such Guarantor determines, in its business judgment, that the obligation to pay such Additional Amounts cannot be avoided by the use of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person reasonable measures available to the Issuer Company or such Guarantor, not including substitution of the obligor under the Notes.
(g) Notice of redemption shall be mailed at least 30 but not more than 60 days before the redemption date to each Holder of Notes at its registered address.
(h) No such notice of redemption may be given pursuant to Section 4.19(g) above earlier than 90 days prior to the earliest date on which the Company or such Guarantor would but for such redemption be obligated to pay such Additional Amounts or later than 365 days after the Company or such Guarantor first becomes liable to pay any Additional Amounts as a result of any changes in or amendments to laws, regulations or official positions described above. At the time such notice is given, the Company’s or such Guarantor’s obligation to pay such Additional Amounts remains in effect. Prior to the publication of any notice of redemption pursuant to Section 4.19(g) above, the Company will deliver to the Trustee (a) an Officers’ Certificate stating that the Company is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Company so to redeem have occurred and (b) an opinion of legal counsel qualified under the laws of the relevant jurisdiction to the effect that the Company or such Guarantor is incorporatedhas or will become obligated to pay such Additional Amounts as a result of such amendment or change as described above. Any redemption pursuant to Section 4.19(f) hereof must be made pursuant to the provisions of Sections 3.01 through 3.07 hereof unless otherwise provided for in Sections 4.19 (f), engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes (g) and any department or any political subdivision thereof or therein(h) hereof.
Appears in 1 contract
Additional Amounts. All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees any Note Guarantee by a Payor will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company withholding or any Guarantor (or any Paying Agent) deduction of such Taxes is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authoritylaw. If the Company any withholding or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount deduction for or on account of Taxes imposed or levied is required by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guaranteesapplicable law, the Company or any such Guarantor applicable Payor will pay to each Holder of the Notes that are outstanding on the date of the required payment, Holders such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the every net amount received by such Holder payment of interest (including any premium paid upon redemption of the Additional Amounts) after such withholding Notes and any discount deemed interest under Netherlands law), principal or deduction other amount on that Note or the Note Guarantee will not be less than the amount such Holder Holders would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:.
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of The Company (and Guarantors) will also indemnify and reimburse Holders for:
(1) Taxes (including any interest, penalties and related expenses) imposed on the date on which such payment first became due and Holders (2) or if the full amount payable has a Holder is not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due dateowner, the date on which, the full amount having been so received, notice to that effect shall have been given beneficial owner) by a Relevant Tax Jurisdiction if and to the Holders except to the same extent that the a Holder or the beneficial owner would have been entitled to such Additional Amounts receive additional amounts if the Company (or a Guarantor) or other applicable withholding agent had been required to deduct or withhold those taxes from payments on surrendering such the Notes or the Note for payment on Guarantees; and
(2) Stamp, court, documentary or similar taxes or charges (including any day during interest, penalties and related expenses) imposed by a Relevant Tax Jurisdiction in connection with the applicable 30-day period;execution, delivery, enforcement or registration of the Notes or the Note Guarantees or other related documents and obligations.
(b) The Company (or a Guarantor) will not pay additional amounts to any Holder for or on account of any of the following:
(1) any Tax imposed solely because at any time there is or was a connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of or possessor of power over the relevant holder if the holder is an estate, nominee, trust, partnership, limited liability company, or corporation) and the Relevant Tax Jurisdiction imposing the tax (other than the mere receipt of a payment or the acquisition, ownership, disposition or holding of, or enforcement of rights under, a Note or the Note Guarantees);
(2) any estate, inheritance, gift, excise, transfer, property or any similar tax, assessment or other governmental charge is charge;
(3) any Taxes imposed or withheld by reason of the failure to comply by solely because the Holder or, (or if differentthe Holder is not the beneficial owner, the beneficial owner (ayant-droitowner) of the Note fails to comply with a request addressed to such Holder or beneficial owner to provide informationany certification, documents identification or other evidence reporting requirement concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction taxing jurisdiction of such the Holder or any beneficial owner which of the Note or the Note Guarantees, if compliance is required by law or imposed by an applicable income tax treaty to which the jurisdiction imposing the tax is a statuteparty, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to an exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental chargecharge for which such Holder is eligible and the Company (or a Guarantor) has given the Holders written notice within a reasonable period of time prior to the first payment date with respect to which such information or identification is required under applicable law that Holders will be required to provide such information and identification;
(e4) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or Taxes with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any a Note or Subsidiary a Note Guarantee presented for payment 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 and notice thereof given to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment Holders, whichever occurs later, except to the extent that a beneficiary or settlor or beneficial owner the Holder of the Note would not have been entitled to any Additional Amounts additional amounts had the Notes been presented on the last day of such beneficiary or settlor or beneficial owner been the Holder30-day period;
(g5) such any withholding or deduction is imposed or levied on a payment to a Luxembourg resident an individual and that is required to be made pursuant to the Luxembourg European Union Directive on the taxation of savings income, which was adopted by the ECOFIN Council on June 3, 2003, or any law of 23 December 2005;implementing or complying with, or introduced in order to conform to, such Directive; and
(h6) when any Tax imposed on or with respect to a payment made to a Holder or beneficial owner of Notes who would have been able to avoid such withholding or deduction is required by presenting the relevant Notes to be made by reason of that interest being (x) paid to a bank account opened another paying agent in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A member state of the French Code général des impôtsEuropean Union;
(i7) in case of Taxes which are any Tax payable otherwise other than by deduction or withholding from payments to a Holder or deduction from a payment made under beneficial owner under, or with respect to, the Notes or with respect to the Notes;any Note Guarantee; or
(j8) any combination of times listed in clauses (1) when through (7) above.
(c) The Payor will (i) make any such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
applicable law and (kii) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company Payor will furnishmake reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Tax Jurisdiction imposing such Taxes. The Payor will provide to the Trustee, within 60 days a reasonable time after the date the payment of any Taxes is so deducted or withheld are due pursuant to applicable law, to the Trustee, copies either a certified copy of tax receipts (to the extent received from the relevant evidencing such payment, or, if such tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence receipts are not reasonably available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payablePayor, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such other documentation that provides reasonable evidence of such payment (unless such obligation to pay Additional Amounts arises after by the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or Payor.
(d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this This Section 4.19 4.17 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any successor Person to any Payor and to any jurisdiction in which any such successor Person to the Issuer is organized or any Guarantor is incorporated, engaged in otherwise resident or doing business for tax purposes or resident for tax purposes or any jurisdiction from or through which payment is made by such Person makes any payment on the Notes and any department successor or any political subdivision thereof or thereinits respective agents.
Appears in 1 contract
Additional Amounts. All (a) The Company and any Subsidiary Guarantor are required to make all payments made by under this Indenture or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or on behalf of the government of the country in which the Company or Subsidiary Guarantor and any successor thereof is organized or incorporated or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which the Company or any Subsidiary Guarantor (including any successor entities) is then organized or otherwise resident for tax purposes or the jurisdiction of any political subdivision thereof or therein or any jurisdiction by or through which payment is made Paying Agent (each, a “Relevant Taxing Jurisdiction”), unless the Company or any a Subsidiary Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authority. thereof.
(b) If the Company Company, or any Guarantor (Subsidiary Guarantor, or any a Paying Agent) Agent is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesNotes, the Company or any such Subsidiary Guarantor will be required to pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) with respect to the Notes as may be necessary so that the net amount received by such any Holder or beneficial owner (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder or beneficial owner would have received if such Taxes had not been withheld or deducted; provided, provided however, that no the foregoing obligation to pay Additional Amounts will be payable with respect to any Notedoes not apply to:
(ai) surrendered by any Taxes that would not have been so imposed but for the Holder existence of any present or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of former connection between the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with and the Relevant Taxing Jurisdiction (including a connection between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of such Holder power over, the relevant holder or beneficial owner, if the relevant holder or beneficial owner which is required an estate, nominee, trust, partnership or imposed by a statutecorporation, treaty, regulation or administrative practice of and the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(cJurisdiction) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitationlimiting the generality of the foregoing, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, partner, member, shareholder, or possessor) of the Notes being or having been a citizen citizen, resident, or resident national thereof or being or having been present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(dii) on account of any estate, inheritance, gift, salesales, transfer, transfer or personal property tax or other similar tax, assessment or other governmental chargeTaxes;
(eiii) except any withholding or deduction in the case respect of the winding up Notes (a) presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant note to any other paying agent, or (b) where the payment could have been made without such deduction or withholding if the beneficiary of the Company or any Guarantor, any Note surrendered payment had presented the notes for payment in within 30 days after the Republic date on which such payment on the notes became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the holder or beneficial owner would have been entitled to Additional Amounts had the notes been presented on the last day of Francesuch 30-day period);
(fiv) as a result of any combination of (a), (b), (c), (d) or (e) or Taxes imposed with respect to any payment made of principal of (or premium, if any, on) or interest on the Notes by or on behalf of the Company or any Subsidiary Guarantor in respect of any Note or Subsidiary Guarantee to any Holder or beneficial owner who is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to any the Additional Amounts had such beneficiary or settlor beneficiary, settlor, member or beneficial owner been the Holderactual Holder or beneficial owner of such Notes;
(gv) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of any Taxes that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise other than by deduction or withholding or deduction from a payment payments made under or with respect to the Notes;
(jvi) when any Taxes that would not have been imposed but for the failure of the Holder and/or beneficial owner (a) to comply with the Company’s or the paying agent’s request in writing at least 30 days before any withholding for such Taxes to the Holder to provide certification, documentation, information or other evidence concerning the nationality, residence, entitlement to treaty benefits, identity, direct or indirect ownership of or investment in the Notes, or connection with the Relevant Taxing Jurisdiction of the Holder and/or beneficial owner of such Notes, or (b) to make any valid or timely declaration or similar claim or satisfy any other reporting requirement or to provide any information relating to such matters, whether required or imposed by statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of withholding or deduction is of, Taxes imposed by the Relevant Taxing Jurisdiction;
(vii) any Taxes that are required to be made by reason deducted or withheld from any payment under or in respect of the Notes as a consequence of the Holder or beneficial owner of Notes or the recipient of the interest payable on the Notes not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with the Company or any Subsidiary Guarantor at the time of making any such payment;
(viii) any Taxes that are required to be deducted or withheld from any payment under or in respect of the Notes as a consequence of the Holder or beneficial owner of the Note concurrently Notes being at any time a shareholder ‘‘specified non-resident shareholder’’ (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Company or at any time not dealing at arm’s length (within the meaning of any Guarantor; or
the Income Tax Act (kCanada)) Any combination with a “specified shareholder” (within the meaning of items subsection 18(5) of the Income Tax Act (aCanada)) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) as a consequence of the U.S. Internal Revenue Code of 1986, as amended payment being deemed to be a dividend under the Income Tax Act (the “Code”Canada), or otherwise imposed pursuant to Sections ;
(ix) any Taxes payable under section 1471 through 1474 of the Code (or any successor or amended versions thereof), any regulations thereunder or other official interpretations thereofguidance thereunder, or any agreement (including any intergovernmental agreement or any law implementing such governmental agreement) entered into in connection therewith (“FATCA”);
(x) any Taxes or penalties arising from the Holder’s or beneficial owner’s failure to comply with the Holder’s or beneficial owner’s obligations imposed under Part XVIII of the Income Tax Act (Canada), the Canada-United States Enhanced Tax Information Exchange Agreement Implementation Act (Canada) or the similar provisions of legislation of any other jurisdiction that has entered into an intergovernmental agreement between with the United States and another jurisdiction facilitating of America to provide for the implementation thereof of FATCA based reporting; or
(xi) any combination of, or any fiscal Taxes arising from a combination of the factors described in, (i) to (x) above.
(c) At least 30 calendar days prior to each date on which any payment under or regulatory legislationwith 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, rules or practices implementing such an intergovernmental agreement) (any such withholding or deductionin which case it shall be promptly thereafter), a “FATCA Withholding”). Neither if the Company nor or any other person, including any Guarantor, Subsidiary Guarantor will be required obligated to pay any Additional Amounts in with respect to such payment, the Company will deliver to the U.S. Trustee and paying agent for the affected Notes an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the U.S. Trustee or paying agent, as the case may be, to pay such Additional Amounts to Holders and beneficial owners of FATCA Withholdingsuch Notes on the payment date. Each such Officers’ Certificate shall be relied upon until receipt of a further Officers’ Certificate addressing such matters.
(d) The Company or any the applicable Subsidiary Guarantor will also (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishprovide the U.S. Trustee with official receipts or, within 60 days after if notwithstanding the date efforts of the Company official receipts are not obtainable, other documentation reasonably satisfactory to the U.S. Trustee, evidencing the payment of any Taxes is due pursuant Tax so deducted or withheld for each Relevant Taxing Jurisdiction imposing such Taxes. The Company will attach to applicable law, to each official receipt or other documentation a certificate stating (x) that the Trustee, copies amount of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made Tax evidenced by the Company official receipt or any Guarantor. The Trustee will make other documentation was paid in connection with payments in respect of the principal amount of such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due then outstanding and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and y) the amount so payable and will set forth of such other information as necessary to enable Tax paid per $1,000 of principal amount of such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Notes.
(e) Whenever reference is made in this Indenture there is mentionedIndenture, in any context, to (ai) the payment of principal (and premium, if any)principal, (bii) redemption prices or purchase prices in connection with a redemption or purchase of the Notes, (ciii) interest or (div) any other amount payable on or with respect to any of the Notes or the Subsidiary GuaranteesNotes, such mention is reference will be deemed to include mention of the payment of Additional Amounts provided for in as described under this section heading to the extent, extent that, in such context, Additional Amounts are, were are or would be payable in respect thereof. .
(f) The Company or a Guarantor, as the case may be, will pay any present or future stamp, court court, documentary or documentary taxes or any other excise or property similar taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue execution, delivery or registration of the Notes of, or on the enforcement of any payments with respect to the Notesrights under, any Subsidiary Guarantee, the this Indenture or any other documents related thereto document.
(limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (ag) through (k) above). The obligations of the Company or any Guarantor described in under this Section 4.19 2.13 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer Company or any Subsidiary Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department organized or any political subdivision or taxing authority or agency thereof or therein.
(h) The Company and the Subsidiary Guarantors shall indemnify and hold harmless the Trustees for the amount of any Taxes in respect of which the Company, or any Subsidiary Guarantor, is required to pay Additional Amounts pursuant to Section 2.13(b) that are levied or imposed and paid by the Trustees as a result of payments made under or with respect to the Notes or any Subsidiary Guarantee, including any reimbursements under this clause 2.13(h).
Appears in 1 contract
Samples: Indenture (Open Text Corp)
Additional Amounts. All payments made by or on behalf of (a) If the Company or any Guarantor under (or with respect any of their respective successors), as applicable, is required by law or by the interpretation or administration thereof by the relevant government authority or agency to the Notes withhold or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction deduct any amount for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor Specified Tax Jurisdiction (including any successor entitiesregulations or rulings promulgated thereunder) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a hereinafter “Relevant Taxing JurisdictionTaxes”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes Notes, any Note Guarantee or the Subsidiary Guaranteesany Mortgaged Vessel, as applicable, the Company or any such Guarantor will (or any of their respective successors), as applicable, shall pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such each Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such the Holder would have received if such Taxes had not been withheld or deducted; provided, provided however, that no Additional Amounts will shall be payable with respect to any Note:
payments made to a Holder (aan “Excluded Holder”) surrendered in respect of a beneficial owner (i) which is subject to such Taxes by reason of its being connected with the Specified Tax Jurisdiction otherwise than by the Holder mere holding of Notes or the beneficial owner thereof receipt of payments thereunder (or under the related guarantee), (ii) which presents any Note for payment of principal more than 30 60 days after the later of (1x) the date on which such payment first became due and (2y) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner Trustee on or prior to such due date, the date on which, which the full amount payable having been so received, notice to that effect received and the Trustee shall have been given notice to the Holders of its receipt of such full amount, except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering presenting such Note for payment on any the last day during of the applicable 3060-day period;
, (biii) if any taxwhich failed to duly and timely comply with a reasonable, assessment or other governmental charge is imposed or withheld by reason timely request of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner Company to provide information, documents or other evidence concerning the Holder’s nationality, residence, entitlement to treaty benefits, identity or connection with the Relevant Taxing Specified Tax Jurisdiction of or any political subdivision or authority thereof, if and to the extent that due and timely compliance with such request would have reduced or eliminated any Taxes as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner which is required or imposed by a statutebut for this clause (iii), treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(div) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar taxTax, assessment (v) which is a fiduciary, a partnership or other governmental charge;
(e) except in not the case beneficial owner of any payment on a Note, if and to the winding up extent that any beneficiary or settlor of the Company or any Guarantorsuch fiduciary, any Note surrendered for payment partner in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or such partnership or other than the sole beneficial owner of such payment to (as the extent that a beneficiary or settlor or beneficial owner case may be) would not have been entitled to any receive Additional Amounts had with respect to such beneficiary or settlor payment if such beneficiary, settlor, partner or beneficial owner had been the Holder;
(g) Holder of such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, Note or (yvi) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A any combination of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision foregoing numbered clauses of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholdingproviso. The Company or the Guarantors (or any Guarantor will also of their respective successors), as applicable, shall make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Applicable Law.
(b) In the event the Company will furnishelects not to redeem the Notes pursuant to Section 3.07(e), the Company or the Guarantors (or any of their respective successor), as applicable, shall furnish to the Trustee, within 60 30 days after the date the payment of any Taxes is due pursuant to applicable lawApplicable Law, to the Trustee, certified copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or the Guarantors (or any Guarantorof their respective successors), as applicable, in such form as provided in the normal course by the taxing authority imposing such Taxes and as is reasonably available to the Company or the Guarantors (or any of their respective successors), as applicable. The Trustee will shall make such evidence available to the Holders upon request. At least 30 days prior to The Company or the Guarantors (or any of their respective successors), as applicable, shall upon written request of each date on which Holder (other than an Excluded Holder), reimburse each such Holder for the amount of (i) any payment Taxes so levied or imposed and paid by such Holder as a result of payments made under or with respect to the Notes or Notes, the Subsidiary Note Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts Mortgaged Vessel, as applicable, and (ii) any Taxes imposed with respect to any such payment reimbursement under the immediately preceding clause (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment datei), but excluding any such Taxes on such Holder’s net income, so that the Company net amount received by such Holder after such reimbursement will deliver to each Paying Agent an Officers’ Certificate stating not be less than the fact that net amount the Holder would have received if Taxes (other than such Additional Amounts will be payable, and the amount so payable and will set forth Taxes on such other information as necessary to enable Holder’s net income) on such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. reimbursement had not been imposed.
(c) Whenever in this Indenture there is mentioned, in any context, (ai) the payment of principal (and premium, if any)principal, (bii) purchase prices in connection with a purchase of the Notes, (ciii) interest or (div) any other amount payable on or with respect to any of the Notes Notes, or any payment pursuant to the Subsidiary GuaranteesNote Guarantees or in respect of any Collateral, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(d) The foregoing obligations shall survive any defeasance or discharge of this Indenture.
(e) The Company or a Guarantor, as the case may be, will 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 the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue execution, delivery, enforcement or registration of the Notes the Note Guarantees or on a Mortgage or any other document or instrument in relation thereto, or the enforcement receipt of any payments with respect to the Notes, the Note Guarantees, or a Mortgage excluding such taxes, charges or similar levies imposed by any Subsidiary Guaranteejurisdiction outside of the Specified Tax Jurisdiction, the Indenture or jurisdiction of incorporation of any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations successor of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which a paying agent is located, and hereby indemnifies the Holders for any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereintaxes paid by such Holders.
Appears in 1 contract
Additional Amounts. (a) All payments made by or on behalf of that the Company or any Guarantor Issuer makes under or with respect to the Notes or the that any Subsidiary Guarantees Guarantor makes under or with respect to its Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and any other liability with respect similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company Issuer, the Subsidiary Guarantor or any Guarantor Surviving Entity is incorporated, organized, engaged in business (including any successor entitieswhere such Tax is imposed by reason of the Issuer, Subsidiary Guarantor, or Surviving Entity being engaged in business) is then organized or otherwise resident for tax purposes or from or through which any of the foregoing makes any payment on the Notes or by or within any department or political subdivision thereof or therein or any jurisdiction by or through which payment is made having power to tax (each, a “Relevant Taxing Jurisdiction”), unless the Company Issuer or any Guarantor (or any Paying Agent) such Subsidiary Guarantor, as the case may be, is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authorityof law. If the Company Issuer or any Subsidiary Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesNotes, the Company Issuer or any such Guarantor Subsidiary Guarantor, as the case may be, will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so to ensure that the net amount received by such each Holder of the Notes (including the Additional Amounts) after such withholding or deduction will be not be less than the amount such the Holder would have received if such Taxes had not been required to be withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;.
(b) if Neither the Issuer nor any taxSubsidiary Guarantor will, assessment however, pay Additional Amounts in respect or other governmental charge is on account of:
(i) any Taxes that are imposed or withheld levied by a Relevant Taxing Jurisdiction by reason of a present or former connection of a Holder (or a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if the Holder is an estate, a trust, a partnership or a corporation) or a beneficial owner with such Relevant Taxing Jurisdiction (other than the mere receipt or holding of Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under any Notes or the Indenture);
(ii) any Taxes that are imposed or levied by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of Notes, following the Issuer’s written request addressed to provide information, documents or other evidence concerning the nationality, residence, identity or connection with Holder (and made at a time which would enable the Relevant Taxing Jurisdiction of such Holder or beneficial owner acting reasonably to comply with that request), to comply with any certification, identification, information or other reporting requirements which the Holder or such beneficial owner is legally required or to satisfy, whether imposed by a statute, treaty, regulation or administrative practice of the a Relevant Taxing Jurisdiction Jurisdiction, as a precondition to exemption from all from, or part reduction in the rate of such taxdeduction or withholding of, assessment or governmental charge;
(c) held Taxes imposed by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, (including, without limitation, such a certification that the Holder or beneficial owner being or having been a citizen or is not resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment thereinthe Relevant Taxing Jurisdiction);
(diii) on account of any estate, inheritance, gift, salesales, transfer, personal property or other similar tax, assessment or other governmental chargeTaxes;
(eiv) except in any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of FranceNotes;
(fv) as any Tax that is imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of such Notes for payment on a result of date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficial owner or Holder thereof would have been entitled to Additional Amounts had the Notes been presented for payment on any combination of date during such 30 day period;
(a), (b), (c), (dvi) or (e) any Tax imposed on or with respect to any payment made by or on behalf of the Company Issuer or any Subsidiary Guarantor in respect of any Note or Subsidiary Guarantee to any the Holder who if such Holder is a fiduciary or partnership or person other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary, member of such partnership or the beneficial owner of such payment would not have been entitled to any the Additional Amounts had such beneficiary or settlor beneficiary, settlor, member or beneficial owner been the Holderactual holder of such Note;
(gvii) any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union;
(viii) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed or levied on a payment to a Luxembourg resident an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the Luxembourg conclusions of the ECOFIN Council meeting of November 26–27, 2000 on the taxation of savings income or any law of 23 December 2005;
(h) when such withholding implementing or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established incomplying with, or (y) paid or accrued introduced in order to a person established or domiciled inconform to, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any GuarantorDirective; or
(kix) Any any combination of items the above.
(ac) through (j) above. Notwithstanding The Issuer and any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Subsidiary Guarantor will also (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant taxing authority in the Relevant Taxing Jurisdiction in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts .
(to the extent received from the relevant tax authorities in the usual course or as generally providedd) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company Issuer or any Subsidiary Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment datethereafter), the Company Issuer will deliver to each Paying Agent the Trustee an Officers’ Officer’s Certificate stating the fact that such Additional Amounts will be payable, payable and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever The Issuer will promptly publish a notice in this accordance with the provisions set forth in Section 13.02 of the Indenture there is mentionedstating that such Additional Amounts will be payable and describing the obligation to pay such amounts.
(e) Upon request, in any context, (a) the Issuer or the Subsidiary Guarantors will furnish to the Trustee or the Holder copies of tax receipts evidencing the payment of principal (any Taxes by the Issuer or the applicable Subsidiary Guarantor in such form as provided in the normal course by the taxing authority imposing such Taxes and premium, if any), (b) purchase prices in connection with a purchase as is reasonably available to the Issuer or the applicable Subsidiary Guarantor. If notwithstanding the efforts of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes Issuer or the Subsidiary GuaranteesGuarantors to obtain such receipts, the same are not obtainable, the Issuer or the applicable Subsidiary Guarantor will provide the Trustee or such mention is deemed to include mention of the payment of Additional Amounts provided for in this section Holder other evidence satisfactory to the extentTrustee or the Holder of such payments by the Issuer or the applicable Subsidiary Guarantor.
(f) In addition, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will Issuer and the Subsidiary Guarantors shall pay any present or future stamp, court or documentary taxes or any other issue, registration, documentation, excise or property taxes or other similar taxes, charges or similar levies that arise and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the United Statesexecution, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue issue, delivery or registration of the Notes or on any other document or instrument referred to thereunder (other than in respect of the execution, issue, delivery or registration of Notes pursuant to Section 2.06, Section 2.07 or Section 2.10(a)(iv) of the Indenture) and any such taxes, charges or duties imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes and/or any payments other such document or instrument following the occurrence of any Event of Default with respect to the Notes, any and the Issuer and each Subsidiary Guarantee, Guarantor shall indemnify the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to Holders for any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses taxes paid by such Holders.
(ag) through (k) above). The obligations of the Company or any Guarantor described in under this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, paragraph 3 shall apply mutatis mutandis, mutandis to any jurisdiction in which any Surviving Entity or successor Person person to the Issuer or any Guarantor is incorporated, organized, engaged in business for tax purposes or otherwise resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department purposes, or any political subdivision or taxing authority thereof or therein. Whenever the Indenture or this Note refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note, such reference includes the payment of Additional Amounts, if applicable.
Appears in 1 contract
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor Issuer under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) Taxes imposed or levied by or on behalf of any jurisdiction in which the Company Issuer is organized, resident or any Guarantor (including any successor entities) is then organized or resident carrying on business for tax purposes or from or through which the Issuer (or its agents) makes any payment on the Notes or any department or political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) Issuer is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authoritythereof. If the Company or any Guarantor (or any Paying Agent) Issuer is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesNotes, the Company or any such Guarantor Issuer, subject to the exceptions set forth in Section 2.6(b), will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so such that the net amount received in respect of such payment by such each Holder (including the Additional Amounts) or Beneficial Holder after such withholding or deduction (including withholding or deduction attributable to Additional Amounts payable hereunder but excluding Taxes on net income) will not be less than the amount such the Holder or Beneficial Holder, as the case may be, would have received if such Taxes had not been required to be so withheld or deducted.
(b) Notwithstanding Section 2.6(a), provided that no the Issuer will not, however, pay Additional Amounts will be payable to a Holder or Beneficial Holder with respect to any Noteof the following Taxes imposed on or with respect to a Holder or Beneficial Holder or required to be withheld or deducted from a payment to a Holder or Beneficial Holder:
(ai) surrendered Taxes imposed on or measured by the net income (however denominated), franchise Taxes and branch profits Taxes, in each case (i) imposed as a result of such Holder or Beneficial Holder being organized under the beneficial owner thereof laws of, having a business office located in, or being a resident of the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes;
(ii) in the case of a Holder or Beneficial Holder, withholding Taxes imposed on amounts payable to or for payment the account of principal more than 30 days after the later of (1) such Holder or Beneficial Holder with respect to an applicable interest in an Indenture Obligation pursuant to a law in effect on the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or Beneficial Holder acquires such interest in the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day periodIndenture Obligation;
(biii) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed Taxes attributable to such Holder or beneficial owner Beneficial Holder’s failure to comply with a request from the Trustee to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to tax exemption from all or part of such tax, assessment or governmental chargecertificate;
(civ) held by or on behalf of a Holder or the beneficial owner who is liable for any withholding Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment thereinimposed under FATCA;
(dv) any Canadian withholding Taxes imposed under the Tax Act on any amount paid or credited, or deemed as paid or credited, by or on account of any estate, inheritance, gift, sale, transfer, personal property obligation of the Issuer under this Indenture (A) to a Holder or Beneficial Holder or recipient with which the Issuer does not deal at arm’s length (for the purposes of the Tax Act) at the time of making such payment or (B) in respect of a debt or other similar taxobligation to pay an amount to a Holder or Beneficial Holder or recipient with whom the Issuer is not dealing at arm’s length (for the purposes of the Tax Act) at the time of such payment (other than where, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;foregoing clauses
(fA) or (B), the non-arm’s length relationship arises as a result of such Holder or Beneficial Holder or recipient having become a party to, received or perfected a security interest under or received or enforced any combination rights under this Indenture or any other Note Document);
(vi) any Canadian withholding Taxes imposed under the Tax Act on any amount paid or credited, or deemed as paid or credited, by any Holder or Beneficial Holder or recipient by reason of such Holder or Beneficial Holder or recipient (a)A) being a “specified non-resident shareholder” (as defined in subsection 18(5) of the Tax Act) of the Issuer, (b)B) not dealing at arm’s length (for the purposes of the Tax Act) with a “specified non-resident shareholder” (as defined in subsection 18(5) of the Tax Act) of the Issuer, (c), (d) or (eC) or with respect to any payment made by or on behalf of the Company or any Guarantor being a “specified entity” in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
Issuer (g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A subsection 18.4(1) of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any GuarantorTax Act); or
(kvii) Any any combination of the foregoing items (ai) through (jvi).
(c) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees any Note Guarantee is due and payable, if the Company or any Guarantor becomes Issuer will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th 35th day prior to the date on which such payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment datethereafter), the Company Issuer will deliver to each Paying Agent the Trustee an Officers’ Officer’s Certificate stating the fact that such Additional Amounts will be payable, payable and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned.
(d) The Issuer will indemnify and hold harmless the Holders and Beneficial Holders and, in upon written request of any contextHolder or Beneficial Holder, reimburse such Holder or Beneficial Holder for the amount of (ai) the payment of principal (any Taxes levied or imposed by a Relevant Taxing Jurisdiction and premium, if any), (b) purchase prices payable by such Holder or Beneficial Holder in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on payments made under or with respect to any of the Notes held by such Holder or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were Beneficial Holder and (ii) any Taxes levied or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments imposed with respect to any reimbursement under the Notesforegoing clause (i) or this clause (ii), any Subsidiary Guarantee, so that the Indenture net amount received by such Holder or any other documents related thereto (limited, in case of Beneficial Holder after such reimbursement will not be less than the net amount such Holder or Beneficial Holder would have received if the Taxes attributable giving rise to the receipt of payments thereto, to any such Taxes imposed or withheld reimbursement described in a Relevant Taxing Jurisdiction that are not excluded under clauses (ai) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.and/or
Appears in 1 contract
Samples: Trust Indenture
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees any Guarantee will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge (charge, including without limitationany related interest, penalties, interest and any other liability with respect thereto) penalties or additions to tax (“Taxes”) unless the withholding or deduction of such Taxes is then required by law or by the official interpretation or administration thereof. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction under the laws of which the Issuer or any Guarantor is then incorporated or organized or in which the Company Issuer or any Guarantor (including any successor entities) is then organized engaged in business for tax purposes or resident for tax purposes or any political subdivision or governmental authority thereof or therein having power to tax or (2) any jurisdiction by from or through which payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any paying agent for the Notes) or any political subdivision thereof or therein (each, a “Relevant Taxing Tax Jurisdiction”), unless the Company or ) will at any Guarantor (or any Paying Agent) is time be required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction be made from any payment payments made under or with respect to the Notes or any Guarantee, including, without limitation, payments of principal, CG&R Draft Current date: 06-20-2019 11:20 AM 51390170v5 redemption price, interest or premium, then the Subsidiary GuaranteesIssuer or the relevant Guarantor, the Company or any such Guarantor as applicable, will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount amounts received with respect to such payments by such Holder (including the Additional Amounts) each holder of Notes after such withholding or deduction (including any such withholding or deduction from such Additional Amounts) will not be less than equal the amount such Holder respective amounts that would have been received if with respect to such Taxes had not been withheld payments in the absence of such withholding or deducteddeduction; provided, provided however, that no Additional Amounts will be payable with respect to any Noteto:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due dateany Taxes, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that such Taxes would not have been imposed but for the Holder existence of any actual or deemed present or former connection between the holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over the relevant holder, if the relevant holder is an estate, nominee, trust, partnership, limited liability company or corporation) or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during Beneficial Owner of Notes and the applicable 30-day period;
relevant Tax Jurisdiction (b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen citizen, resident or resident national thereof or being or having been present or engaged in a trade or business therein or having or having had a permanent establishment therein), other than connections arising from the acquisition or holding of such Note or a Guarantee, the exercise or enforcement of rights under such Note or under a Guarantee or the receipt of any payments with respect to such Note or a Guarantee;
(d2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where Notes are in the form of certificated Notes and presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder (except to the extent that the holder would have been entitled to Additional Amounts had the Note been presented on account the last day of such 30 day period);
(3) any estate, inheritance, gift, salesales, transfer, personal property or other similar tax, assessment or other governmental chargeTaxes imposed on transfers;
(e4) except in any Taxes payable other than by deduction or withholding from payments under, or with respect to, the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) Notes or with respect to any payment made Guarantee;
(5) any Taxes to the extent such Taxes are imposed or withheld by or on behalf reason of the Company failure of the holder or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment Notes to comply with any reasonable written request of the Issuer addressed to the extent that a beneficiary or settlor holder or beneficial owner would not have been entitled to and made at least sixty (60) days before any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction would be payable to satisfy any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of the relevant Tax Jurisdiction, as a precondition to exemption from or reduction in the rate of deduction or withholding of, Taxes imposed by such Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is imposed or levied on a payment to a Luxembourg not resident individual and is required to be made pursuant in the Tax Jurisdiction), but in each case, only to the Luxembourg law of 23 December 2005extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(h6) when such withholding or deduction is required to be made by reason of any Taxes that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed withheld pursuant to Sections 1471 through 1474 of the Code Code, as of the Issue Date (or any amended or successor version of such sections), any regulations thereunder or promulgated thereunder, any official interpretations thereof) , any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States and another jurisdiction facilitating with respect to the implementation thereof (foregoing or any fiscal agreements entered into pursuant to Section 1471(b)(1) of the Code; or
(7) any combination of items (1) through (6) above. CG&R Draft Current date: 06-20-2019 11:20 AM 51390170v5 Such Additional Amounts will also not be payable where, had the beneficial owner of the applicable Note been the holder of such Note, it would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above.
(b) In addition to the foregoing, the Issuer and the Guarantors, as the case may be, will also pay and indemnify the holder for any present or regulatory legislationfuture stamp, rules issue, registration, court or practices implementing such an intergovernmental agreementdocumentary Taxes, or any other excise or property Taxes, charges or similar levies (including penalties, interest and any other reasonable expenses related thereto) which are levied by any Tax Jurisdiction on the execution, delivery, issuance, sale, enforcement or registration of the Notes, this Indenture, any Guarantee or any other document or instrument referred to therein, or the receipt of any payments with respect thereto, (limited, solely in the case of taxes attributable to the receipt of any payments with respect thereto, to any such withholding taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or deduction, a “FATCA Withholding”(5) through (6) above or any combination thereof). Neither .
(c) If the Company nor any other person, including Issuer or any Guarantor, as the case may be, becomes aware that it will be required obligated to pay any Additional Amounts with respect to any payment under or with respect to any series of Notes or any related Guarantee, each of the Issuer or the relevant Guarantor, as the case may be, will deliver to the Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises less than 30 days prior to that payment date, in respect of FATCA Withholdingwhich case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Company Officer’s Certificate must also set forth any other information reasonably necessary to enable the Paying Agent to pay such Additional Amounts to holders on the relevant payment date. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary.
(d) The Issuer or any the relevant Guarantor will also make such withholding or deduction all withholdings and deductions required by Applicable Law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable lawApplicable Law. The Company Issuer or the relevant Guarantor will furnishuse its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor will furnish to the Trustee (or to a holder or beneficial owner upon written request), within 60 days a reasonable time after the date the payment of any Taxes so deducted or withheld is due pursuant 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 applicable lawobtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity. Upon reasonable request, copies of tax Tax receipts (or other evidence of payments, as the case may be, will be made available by the Trustee to the extent received from the relevant tax authorities in the usual course holders or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders beneficial owners of the Notes on the payment date. Notes.
(e) Whenever in this Indenture there is mentioned, in any context, (a) the payment of amounts based upon the principal (and premium, if any), (b) purchase prices in connection with a purchase amount of the NotesNotes or of principal, (c) interest or (d) of any other amount payable on under, or with respect to to, any of the Notes or the Subsidiary Guaranteesany Guarantee, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(f) The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The above obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or Indenture, and any transfer by a holder or beneficial owner of its notesNotes, and will apply, mutatis mutandis, to any jurisdiction under the laws of which any successor Person to the Issuer or any Guarantor is incorporated or organized or in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes (and any political subdivision or governmental authority thereof or CG&R Draft Current date: 06-20-2019 11:20 AM 51390170v5 therein having power to tax) and any jurisdiction from or through which payment is made by or on behalf of such Person makes any payment on the Notes or any Guarantee and any department or any political subdivision thereof or therein.
Appears in 1 contract
Additional Amounts. (i) All payments made by or on behalf of the Company Borrower or any Guarantor under or with respect to the Notes Loans or the Subsidiary Guarantees any Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied Taxes unless required by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authoritylaw. If the Company Borrower or an Guarantor or any Guarantor (or any Paying Agent) other applicable withholding agent is so required by law to withhold or deduct any amount for or on account of Taxes imposed by (i) any jurisdiction from or levied by through which such payment is mad or on behalf any political subdivision or taxing authority thereof or therein or (ii) any other jurisdiction in which the Borrower or any Guarantor is incorporated, organized or otherwise resident or doing business for tax purposes or any political subdivision or taxing authority thereof or therein (each of (i) and (ii), a “Relevant Taxing Jurisdiction Jurisdiction”) from any payment made under or with respect to the Notes Loans or the Subsidiary Guaranteesunder any Guarantee, the Company Borrower or any such Guarantor Guarantor, as the case may be, will pay to each Holder of the Notes that are outstanding on the date of the required payment, (together with such payments) such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) each beneficial owner of Loans after such withholding or deduction (including any withholding or deduction attributable to the Additional Amounts) will be not be less than the amount such Holder the beneficial owner would have received if such Taxes had not been withheld or deducted.
(ii) Neither the Borrower nor any Guarantor will, provided that no however, pay Additional Amounts will be payable to a Lender or beneficial owner of Loans in respect or on account of:
(A) any Tax, to the extent such Tax would not have been imposed or levied by a Relevant Taxing Jurisdiction, but for the existence of any present or former connection between the Lender or beneficial owner (or between a fiduciary, settlor, beneficiary, member, partner or shareholder of, or possessor of power over the relevant Lender or beneficial owner, if the relevant Lender or beneficial owner is an estate, nominee, trust, partnership, limited liability company or corporation) and such Relevant Taxing Jurisdiction (including, without limitation, as a result of being a citizen or national of, or being resident or doing business for tax purposes, or maintaining a permanent establishment in, the Relevant Taxing Jurisdiction) (other than any connection arising solely from the acquisition, ownership, holding or disposition of the Notes, the receipt of payments under or with respect to such Notes or a Guarantee, or the exercise or enforcement of rights under or with respect to the Notes or any Note:Guarantee);
(aB) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due dateany Tax, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge Tax is imposed or withheld by reason of the failure of the Lender or beneficial owner of Loans, following the Borrower’s written request addressed to comply by the Holder or, if different, the Lender or beneficial owner (ayant-droit) of and made at a time that would enable the Note with a request addressed to such Holder Lender or beneficial owner acting reasonably to provide informationcomply with that request, documents and in all events at least 30 days before the relevant date on which such withholding or other evidence deduction would be payable), to comply with any certification or identification requirements concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder Lender or beneficial owner which is owner, whether required or imposed by a statute, treaty, regulation or administrative practice of the a Relevant Taxing Jurisdiction Jurisdiction, as a precondition to exemption from all from, or part reduction in the rate of such taxdeduction or withholding of, assessment or governmental charge;
(c) held Taxes imposed by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than but in each case only to the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, extent such Holder Lender or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment thereinowner, as the case may be, is legally eligible to provide such certification;
(dC) on account of any estate, inheritance, gift, salesales, transfer, personal property transfer or other similar tax, assessment or other governmental chargeTax;
(eD) except in any Tax that is payable otherwise than by deduction or withholding from payments made under or with respect to the case of the winding up of the Company Loans or any Guarantor, any Note surrendered for payment in the Republic of FranceGuarantee;
(fE) as any Tax that is imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of the Loans for payment on a result date more than 30 days after the date on which such payment became due and payable or a the date on which payment thereof was duly provided for, whichever is later, except to the extent that the Lender or beneficial owner would have been entitled to Additional Amounts had the Note been presented for payment on any date during such 30-day period;
(F) [reserved];
(G) any Tax that is imposed or levied with respect to a Loan presented for payment on behalf of a Lender or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Note to another paying agent in a member state of the European Union;
(H) any combination of (a), (b), (c), (d) or (e) Tax imposed on or with respect to any payment made by the Borrower or on behalf of a Guarantor to the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who Lender if such Lender is a fiduciary or partnership or person other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner Taxes would not have been entitled to any Additional Amounts imposed on such payment had such beneficiary the beneficiary, partner or settlor or other beneficial owner been directly held the HolderLoans, provided that there is no material cost or material commercial or legal restriction to transferring the Loans to the beneficiary, partner or other beneficial owner and only to the extent such Tax is imposed more than 90 days after the Borrower notifies such Lender of the imposition of such Tax and requests the Lender to make such a transfer;
(gI) such withholding or deduction is any Taxes imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
Sections 1471 to 1474 (h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(binclusive) of the U.S. United States Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code Closing Date (or any successor version that is substantively comparable and not materially more onerous to comply with), including any current or future Treasury regulations thereunder or other official interpretations thereof) or an guidance thereunder and any intergovernmental agreement between the United States (and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory related legislation, rules or practices practices) implementing such the foregoing;
(J) any Taxes imposed pursuant to the Dutch Withholding Tax Act 2021 (Wet Bronbelasting 2021) together with the related ordinances, regulations, guidelines, published interpretation, application or any published practice or concession of any relevant tax authority, as in effect on the date of this Agreement or, if later, on the date on which the relevant Recipient acquires an intergovernmental agreementinterest in the Loan or Commitment or this Agreement; or
(K) any combination of clause (A) through (J) above.
(iii) The Borrower and each Guarantor, if they are applicable withholding agents, will (A) make any such withholding or deductiondeduction required by applicable law, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (B) remit the full amount deducted or withheld to the relevant taxing authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts .
(to the extent received from the relevant tax authorities in the usual course or as generally providediv) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Loans is due and payable, if the Company Borrower or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees Loans is due and payable, in which case it such notice will be paid provided promptly thereafter and in any case before the relevant after such obligation arises but prior to such payment date), the Company Borrower will deliver to each Paying the Administrative Agent an Officers’ Officer’s Certificate stating the fact that such Additional Amounts will be payable, payable and the amount so payable and will set forth such other information as (other than the identities of Lenders and beneficial owners) necessary to enable such Paying the Administrative Agent or paying agent as the case may be, to pay such Additional Amounts to the Holders of the Notes Lenders on the relevant payment date. The Borrower will provide the Administrative Agent with documentation evidencing payment of such Additional Amounts. The Administrative Agent shall have no further obligation with respect to the payment of the Additional Amounts other than to deliver the evidence of such payment to a Lender upon written request.
(v) The Borrower or any Guarantor, as applicable, will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Administrative Agent. If certified copies of such tax receipts are not reasonably obtainable, the Borrower or such Guarantor, as applicable, shall provide the Administrative Agent other evidence of payment to the Administrative Agent. Such certified copies or other evidence shall be made available to Lenders upon written request. The Administrative Agent shall have no obligation to inquire as to the efforts of the Borrower or any Guarantor to obtain certified copies of such tax receipts and shall have no further obligation with respect thereto other than to provide the tax receipts or other evidence to the Lenders as provided herein.
(vi) In addition, the Borrower will pay any present or future stamp, issue, registration, court, documentary excise or property Taxes, or other similar Taxes, imposed by any Relevant Taxing Jurisdiction in respect of the receipt of any payment under or with respect to the Loans or any Guarantee, the execution, issue, delivery, or registration of the Loans, any Guarantee, this Agreement, or any other document or instrument referred to therein, and any such Taxes imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Loans, any Guarantee, this Agreement or any other document or instrument following the occurrence of any Event of Default with respect to the Notes. Neither the Borrower nor any Guarantor will, however, pay such amounts that are imposed on or result from a sale or other transfer or disposition by a holder or beneficial owner of a Loan.
(vii) The preceding provisions will survive any termination, defeasance or discharge of this Agreement and will apply mutatis mutandis to any successor to the Borrower or any Guarantor and to any jurisdiction in which any such successor is incorporated, organized or otherwise resident or doing business for tax purposes, or any jurisdiction from or through which such any successor makes payment on the Loans or any Guarantee, and any political subdivision or taxing authority thereof or therein.
(viii) Whenever in this Indenture there is mentionedAgreement refers to, in any context, (a) the payment of principal (and principal, premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on under or with respect to the Loans (including payments thereof made pursuant to any of the Notes or the Subsidiary GuaranteesGuarantee), such mention is deemed to include mention of reference includes the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 1 contract
Samples: Credit Agreement (Clear Channel Outdoor Holdings, Inc.)
Additional Amounts. All payments made by or on behalf of the Company or any Guarantor under or with respect Except to the Notes extent required by law, any and all payments of, or the Subsidiary Guarantees will in respect of, any Note shall be made free and clear of and without withholding or deduction for or on account of any and all present or future taxes, levies, imposts, deductions, charges or withholdings and all liabilities with respect thereto imposed by Bermuda, or any other jurisdiction under the laws of which the Company is organized ("Other Jurisdiction") or any political subdivision of or any taxing authority in Bermuda or in any Other Jurisdiction ("Bermudian Taxes" or "Other Taxes," respectively). If the Company shall be required by law to withhold or deduct any Bermudian Taxes or Other Taxes from or in respect of any sum payable under a Note, the sum payable by the Company, as the case may be, thereunder shall be increased by the amount ("Additional Amounts") necessary so that after making all required withholdings and deductions, the Holder shall receive an amount equal to the sum that it would have received had no such withholdings and deductions been made; provided that any such sum shall not be paid in respect of any of the following Bermudian Taxes or Other Taxes to a Holder (an "Excluded Holder") (i) any tax, duty, levy, impostwithholding, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) which would not have been imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident but for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case existence of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by any present or former connection between such Holder (including the Additional Amounts) after or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such withholding or deduction will not be less than the amount Holder, if such Holder would have received if such Taxes had not been withheld is an estate, trust, partnership or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(acorporation) surrendered by the Holder and Bermuda or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Other Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder (or beneficial owner 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 a trade or business therein or having had a permanent establishment therein;
therein or (dy) the presentation of a Note (where presentation is required) for payment on account of a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later; (ii) any estate, inheritance, gift, sale, transfer, transfer or personal property or other similar tax; (iii) any tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who charge that is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made withheld by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than failure by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being to comply timely with a shareholder reasonable request in writing of the Company (A) to provide information concerning the nationality, residence or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf identity of the Company Holder or such beneficial owner or (B) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (A) or (B), is required or imposed by any Guarantora statute, will be paid net of any deduction treaty, regulation or withholding imposed or required pursuant to an agreement described in Section 1471(b) administrative practice of the U.S. Internal Revenue Code taxing or domicile jurisdiction as a precondition to exemption from or reduction of 1986all or part of such tax, as amended assessment or other governmental charge; provided, however, that this clause (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereofiii) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld shall not apply to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such Company's obligation to pay Additional Amounts arises after if the 30th day prior completing and filling of the information described in (x) above or the declaration or other claim described in (y) above would be materially more onerous in form, in procedure or in substance of information disclosed, in comparison to the date on which payment information reporting requirements imposed under or U.S. tax law with respect to the Notes Forms 1001, W-8 and W-9; or the Subsidiary Guarantees is due (iv) any combination of items (i), (ii), and payable, in which case it will (iii) above; nor shall Additional Amounts be paid promptly thereafter and in with respect to any case before payment of the relevant principal of, or any interest on, any Note to any Holder who is not the sole beneficial owner of such Note or is a fiduciary or partnership, but only to the extent that a beneficial owner, a beneficiary or a settlor with respect to a fiduciary or a member of the partnership would not have been entitled to the payment date)of the Additional Amount had the beneficial owner, beneficiary, settlor or member of such partnership received directly its beneficial or distributive share of the payments. In addition, the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payablepay any stamp, issue, registration, documentary or other similar taxes and the amount so payable duties, including interest and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders penalties, in respect of the Notes on the payment date. Whenever in this Indenture there is mentionedcreation, in any context, (a) the payment of principal (issue and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of offering the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a GuarantorBermuda, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department States or any political subdivision thereof or thereintaxing authority of or in the foregoing. The Company will also pay and indemnify the Trustee and the Holders of the Notes from and against all court fees and 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 be taken by the Trustee or the Holders to enforce the obligations of the Company under the Notes or the Indenture.
Appears in 1 contract
Samples: Convertible Subordinated Note (Central European Media Enterprises LTD)
Additional Amounts. All payments made by or on behalf of the Company or any Guarantor under or with respect (a) Except to the Notes extent required by any applicable law, regulation or the Subsidiary Guarantees will governmental policy, any and all payments of, or in respect of, any Secured Note shall be made free and clear of and without withholding or deduction for or on account of any and all present or future taxtaxes, dutylevies, levyimposts, impostdeduction, assessment charges or other governmental charge (including without limitationwithholdings and all liabilities with respect thereto imposed by Panama, penalties, interest and The Bahamas or any other liability jurisdiction with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Subsidiary Guarantor has some connection (including any successor entitiesjurisdiction (other than the United States of America) is then organized from or resident for tax purposes through which payments under the Issuer Loans, the Secured Notes, the Guarantee or the Subsidiary Guarantees (if any) are made) or any political subdivision of or any taxing authority in any such jurisdiction ("Panamanian Taxes," "Bahamian Taxes," or "Other Taxes," respectively). If the Issuer, the Company or any Subsidiary Guarantor shall be required by law to withhold or deduct any Panamanian Taxes, Bahamian Taxes, or Other Taxes from or in respect of any sum payable under an Issuer Loan Agreement, the Secured Notes, the Guarantee or a Subsidiary Guarantee, the sum payable by the Issuer, the Company or such Subsidiary Guarantor, as the case may be, thereunder shall be increased by the amount ("Additional Amounts") necessary so that after making all required withholdings and deductions, the Holder or beneficial owner of a Secured Note shall receive an amount equal to the sum that it would have received had not such withholdings and deductions been made; provided that any such sum shall not be paid in respect of any Panamanian Taxes, Bahamian Taxes or Other Taxes to a Holder (an "Excluded Holder") (i) resulting from the beneficial owner of such Secured Note carrying on business or being deemed to carry on business in or through a permanent establishment or fixed base in the relevant taxing jurisdiction or having any other connection with the relevant taxing jurisdiction or any political subdivision thereof or any taxing authority therein other than the mere holding or owning of such Secured Note, being a beneficiary of the Guarantee or any jurisdiction by applicable Subsidiary Guarantee, the receipt of any income or through which payment is made (eachpayments in respect of such Secured Note, a “Relevant Taxing Jurisdiction”)any Issuer Loan, unless the Company Guarantee or any Guarantor (applicable Subsidiary Guarantee or the enforcement of such Secured Note, such Issuer Loan, the Guarantee or any Paying Agentapplicable Subsidiary Guarantee, or (ii) that would not have been imposed but for the presentation (where presentation is required to withhold required) of such Secured Note for payment more than 180 days after the date such payment became due and payable or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authoritywas duly provided for, whichever occurs later. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesThe Issuer, the Company or any such Guarantor the Subsidiary Guarantors, as applicable, will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such 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 any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
also (i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company , and, in any such case, the Issuer will furnishfurnish to each Holder on whose behalf an amount was so remitted, within 60 30 calendar days after the date the payment of any Panamanian Taxes, Bahamian Taxes or Other Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Issuer, the Company or any Guarantorthe Subsidiary Guarantors, as applicable. The Trustee Issuer will, upon written request of each Holder (other than an Excluded Holder), reimburse each such holder for the amount of (i) any Panamanian Taxes, Bahamian Taxes or Other Taxes so levied or imposed and paid by such holder as a result of payments made under or with respect to any Secured Notes, and (ii) any Panamanian Taxes, Bahamian Taxes, or Other Taxes so levied or imposed with respect to any reimbursement under the foregoing clause (i) so that the net amount received by such Holder (net of payments made under or with respect to such Secured Notes, such Issuer Loans, the Guarantee or the applicable Subsidiary Guarantees) after such reimbursement will make not be less than the net amount the Holder would have received if Panamanian Taxes, Bahamian Taxes or Other Taxes on such evidence available to the Holders upon request. reimbursement had not been imposed.
(b) At least 30 calendar days prior to each date on which any payment under or with respect to the Secured Notes or the Subsidiary Guarantees is due and payable, if the Issuer, the Company or any Guarantor becomes the Subsidiary Guarantors, as applicable, will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after payment, the 30th day prior to Issuer, the date on which payment under or with respect to the Notes Company or the Subsidiary Guarantees is due and payableGuarantors, in which case it will be paid promptly thereafter and in any case before the relevant payment date)as applicable, the Company will deliver to each Paying Agent the Trustee an Officers’ Certificate officer's certificate stating the fact that such Additional Amounts will be payable, payable and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to Holders on the payment date.
(c) If any Holder or beneficial owner of any Secured Note receives a refund of the Panamanian Taxes, Bahamian Taxes or Other Taxes after the Issuer, the Company or any Subsidiary Guarantor, as applicable, has paid any Additional Amounts, such Holder or beneficial owner shall reimburse the Issuer, the Company or any Subsidiary Guarantor, as applicable, for any amount of such refund.
(d) The Issuer, the Company or the Subsidiary Guarantors will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest and penalties, in respect of the creation, issue and offering of the Secured Notes payable in the United States, Panama, The Bahamas or any political subdivision thereof or taxing authority of or in the foregoing. The Issuer, the Company and the Subsidiary Guarantors, as applicable, will also pay and indemnify the Trustee and the Holders of the Secured Notes from and against all court fees and 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 be taken by the Holders or the Trustee to create Liens on the payment date. Collateral or to enforce the Obligations of the Company or the Subsidiary Guarantors under the Secured Notes, this Indenture, the Guarantee, the Subsidiary Guarantees, the Issuer Loans or the Security Agreements.
(e) Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premiumprincipal, if any), (b) purchase prices premium or interest in connection with a purchase respect of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes Secured Note or the Subsidiary Guaranteesnet proceeds received on the sale or exchange of any Secured Note, such mention is shall be deemed to include mention of the payment of Additional Amounts or Special Interest provided for in this section Indenture to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect thereof pursuant to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinIndenture.
Appears in 1 contract
Samples: Indenture (R&b Falcon Corp)
Additional Amounts. All payments made by (a) At least 10 days prior to the first date on which payment of principal, premium, if any, or interest on behalf of the Company Notes or the Guarantees is to be made, and at least 10 days prior to any Guarantor under or subsequent such date if there has been any change with respect to the matters set forth in the Officers’ Certificate described in this Section 4.20, the Issuer will furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate instructing the Trustee and the Paying Agent that such payment of principal, premium, if any, or interest on the Notes (whether or not in the Subsidiary Guarantees will form of Definitive Notes) or any Guarantee shall be made free and clear of and without to the Holders with withholding or deduction for (but only in case such payment shall be made with such withholding or deduction) for, or on account of of, any present or future taxtaxes, dutyduties, levyassessments or governmental charges of whatever nature (collectively, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of (i) any jurisdiction in which the Company Payor or any Guarantor (including any or successor entities) Guarantor is then organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (ii) any jurisdiction by from or through which payment on the Notes or any of the Guarantees is made made, or any political subdivision or governmental authority thereof or therein having the power to tax (eacheach of clause (i) and (ii), a “Relevant Taxing Jurisdiction”), unless the Company withholding or deduction of Taxes is then required by law.
(b) If any Guarantor (deduction or withholding for, or on account of, any Paying Agent) is required to withhold or deduct Taxes under the laws of the any Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or will at any Guarantor (or any Paying Agent) is so time be required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment payments made under or with respect to the Notes or the Subsidiary Guarantees, including payments of principal, Redemption Price, interest or premium, if any, the Company Payor or any such Guarantor the relevant Guarantor, as applicable, will pay to each Holder of the Notes that are outstanding on the date of the required payment, (together with such payments) such additional amounts pursuant to Paragraph 2 of the relevant series of Notes (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such 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 any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;).
(c) held by The Payor and each Guarantor or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any successor Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
will (i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is make any required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority Relevant Taxing Jurisdiction in accordance with applicable law. The Company Upon written request, the Payor and each Guarantor will furnish, within 60 days after the date use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes is due pursuant so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to applicable law, each Holder. The Payor and each Guarantor or successor Guarantor will attach to each certified copy a certificate stating (x) that the Trustee, copies amount of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made withholding Taxes evidenced by the Company or any Guarantor. The Trustee will make such evidence available to certified copy was paid in connection with payments in respect of the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the principal amount of Notes or the Subsidiary Guarantees is due then outstanding and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and y) the amount so payable and will set forth of such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders withholding Taxes paid per $1,000 principal amount of the Notes on the payment date. Whenever Notes.
(d) Wherever in this Indenture or the Notes there is are mentioned, in any context, (ai) the payment of principal (and premium, if any)principal, (bii) purchase prices in connection with a purchase of the Notes, (ciii) interest or (div) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is reference shall be deemed to include mention of the payment of Additional Amounts provided for as described in this section Indenture and the Notes to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(e) The Company Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or a Guarantorexpense incurred without gross negligence, as the case may be, will pay any present willful default or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic bad faith on their part arising out of France or in connection with actions taken or omitted by any jurisdiction of them in which a Paying Agent is located from the initial issue or registration of the Notes or reliance on the enforcement of any payments with respect Officers’ Certificate furnished to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable them pursuant to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 4.20.
(f) Obligations under this Section 4.20 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinIndenture.
Appears in 1 contract
Samples: Indenture (Smurfit WestRock PLC)
Additional Amounts. All (1) Any payments made by or on behalf of the Company or any Guarantor Corporation under or with respect to the Notes or the Subsidiary Guarantees Debentures will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge charge, excluding, in respect of a Holder or Beneficial Holder, branch profits taxes, franchise taxes and taxes imposed on net income or capital (including without limitationcollectively, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company Corporation or any Guarantor (or any Paying Agent) other payor is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by Applicable Law or by the interpretation or administration thereof by the a relevant taxing authorityGovernmental Authority. If the Company Corporation or any Guarantor other payor of any amount under or in respect of the Debentures (including any amount paid in respect or any Paying Agentproceeds of disposition of the Debenture to a Debentureholder) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or Debentures in respect of any such payment by the Subsidiary GuaranteesCorporation, the Company Corporation will make such withholding or deduction and will remit the full amount withheld or deducted to the relevant Governmental Authority as and when required by Applicable Law and the Corporation will pay to the Trustee or, in respect of any such Guarantor amount paid by any payor other than the Corporation of any amount under or in respect of the Debentures (including any amount paid in respect of proceeds of disposition of the Debentures to a Debentureholder) will pay to each Holder of the Notes that are outstanding on the date of the required payment, Debentureholder such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such each 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, provided however, that no Additional Amounts will be payable with respect to any Note:
payment to a Holder (aan “Excluded Holder”) surrendered in respect of a Beneficial Holder who is liable for such Taxes in respect of such Debentures (i) by the reason of such Holder or Beneficial Holder being a Person with whom the beneficial owner thereof Corporation is not dealing at arm’s length for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf purposes of the relevant Income Tax Act (Canada) (the “Tax Act”) at the time of making such payment, (ii) by reason of the existence of any present or former connection between such Holder or Beneficial Holder and the beneficial owner on or prior to jurisdiction imposing such due dateTax, other than, in either case, solely by reason of the Holder’s activity in connection with purchasing the Debentures, the date on whichmere holding, deemed holding, use or ownership of the full amount having been so receivedDebentures, notice to that effect shall have been given to the Holders except to the extent that the or receiving payments under or enforcing any rights in respect of such Debentures, (iii) by reason of such Holder or Beneficial Holder being a “specified shareholder” of the beneficial owner would have been entitled to Corporation (within the meaning of Section 18(5) of the Tax Act) at the time of payment or deemed payment, or by reason of such Additional Amounts on surrendering such Note Holder or Beneficial Holder not dealing at arm’s length for the purposes of the Tax Act with a “specified shareholder” of the Corporation at the time of payment on any day during the applicable 30-day period;
or deemed payment; (biv) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure of the Holder or Beneficial Holder of a Debenture to comply by the Holder orwith certification, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents information or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of reporting requirements if such Holder or beneficial owner which compliance is required or imposed by a statute, treaty, treaty or regulation or administrative practice of the Relevant Taxing Jurisdiction relevant Governmental Authority as a precondition to exemption from or reduction in all or part of such taxTaxes, assessment deduction or governmental charge;
withholding; or (cv) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property sales or other any similar tax, assessment or other governmental charge;Taxes.
(e2) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 Within 90 days after the date the payment of any Taxes is due pursuant to applicable lawApplicable Law, the Trustee will furnish to the Trustee, Corporation copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) receipts, if any, evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. Trustee.
(3) At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Debentures is due and payable, if the Company or any Guarantor becomes Corporation to its knowledge will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)payment, the Company Corporation will deliver to each Paying Agent the Trustee an Officers’ Officer’s Certificate stating the fact that such Additional Amounts will be payable, payable and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the date payment date. is due.
(4) Whenever in this Indenture or in any Debenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notesprice pursuant to an offer to purchase, (c) interest or (d) any other amount payable on under or with respect to any of the Notes or the Subsidiary GuaranteesDebenture, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(5) The Company or a Guarantor, as the case may be, Corporation will pay any present or future stamp, court or documentary taxes or any indemnify and hold harmless each Holder (other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration than an Excluded Holder) and upon written request reimburse each of the Notes Holders for the amount of (i) any Taxes so levied or on imposed and paid by the enforcement Holder as a result of any payments made under or with respect to the NotesDebentures (including any amount paid by the Corporation in respect of proceeds of disposition of the Debenture to a Holder), and (ii) any Subsidiary GuaranteeTaxes levied or imposed and paid by the Holder with respect to reimbursement under (i) above, but excluding any Taxes on such Holder’s net income or capital.
(6) If the Indenture Corporation pays any indemnity or Additional Amounts under this Section 2.22 to a Holder and the Holder or Beneficial Holder at any other documents related thereto (limited, time thereafter receives a refund in case respect of Taxes attributable or a credit with respect to payment of Taxes, then such Holder or Beneficial Holder shall promptly pay to the receipt Corporation the amount of payments thereto, such refund or credit net of all out-of-pocket expenses reasonably incurred by the Holder or Beneficial Holder to any obtain such Taxes imposed refund or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or 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 incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereincredit.
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Samples: Indenture
Additional Amounts. All payments made by or on behalf of the Company any Issuer or any Guarantor under or any successor in interest to any of the foregoing (each, a “Payor”) on or with respect to the Notes or the Subsidiary Guarantees any Guarantee will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (including without limitationcollectively, penalties, interest and any other liability with respect thereto) (“Taxes”) unless such withholding or deduction is required by law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of of:
(a) any jurisdiction in which (other than the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes United States or any political subdivision or governmental authority thereof or therein or any jurisdiction by having power to tax) from or through which payment on the Notes or any Guarantee is made by such Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(eachb) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a Payor that actually makes a payment on the Notes or its Guarantee is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax, (each of clause (a) and (b), a “Relevant Taxing Jurisdiction”), unless the Company or will at any Guarantor (or any Paying Agent) is time be required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment payments made under or with respect to the Notes or the Subsidiary Guaranteesany Guarantee, including payments of principal, redemption price, interest or premium, if any, the Company or any such Guarantor Payor will pay to each Holder of the Notes that are outstanding on the date of the required payment, (together with such payments) such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by such Holder (including the Additional Amounts) Holders or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amount such Holder amounts that would have been received if in respect of such Taxes had not been withheld payments on the Notes or deductedthe Guarantees in the absence of such withholding or deduction; provided, provided however, that no such Additional Amounts will be payable with respect to any Notefor or on account of:
(ai) surrendered by any Taxes that would not have been so imposed or levied but for the Holder existence of any present or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of former connection between the relevant Holder (or the beneficial owner on between a fiduciary, settlor, beneficiary, partner, member or prior to such due dateshareholder of, or possessor of power over, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder orrelevant Holder, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder is an estate, nominee, trust, partnership, limited liability company or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or the receipt of any payment in respect thereof;
(ii) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the Payor (such request being made at a time that would enable such holder acting reasonably to comply with that request) to make a declaration of nonresidence or beneficial owner any other claim or filing or satisfy any certification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by a statutethe applicable law, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold all or a part of any such tax, assessment or governmental chargeTaxes);
(ciii) held any Taxes that are payable otherwise than by withholding from a payment on the Notes or any Guarantee;
(iv) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(v) any Taxes that are required to be deducted or withheld on a payment pursuant to the Directive or any law implementing, or introduced in order to conform to, the Directive;
(vi) any Taxes imposed in connection with a Note presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another paying agent in a member state of the European Union;
(vii) any Taxes imposed pursuant to the Directive, or any law implementing or complying with, or introduced in order to conform to, the Directive;
(viii) any Taxes payable under Sections 1471 through 1474 of the Code, as of the date of the Offering Circular (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements (including any intergovernmental agreements) entered into pursuant thereto; or
(ix) any combination of the above. Such Additional Amounts will also not be payable (x) 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) within 30 days after the relevant payment was first made available for payment to the Holder or (y) where, had the beneficial owner who is liable for Taxes in respect of such the Note by reason been the Holder of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any payment of Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A any of the French Code général des impôts;
clauses (i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(jviii) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) inclusive above. Notwithstanding The Payor will (1) make any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (2) remit the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The Company Upon request, the Payor will furnish, within 60 days after the date use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes is due pursuant to applicable law, so deducted or withheld from each relevant taxing authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. If, copies notwithstanding the efforts of tax such Payor to obtain such receipts, the same are not obtainable, such Payor will provide the Trustee with other reasonable evidence. Such receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been other evidence will be made available by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon on request. At If any Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to each the date on which any payment under or with respect of such payment, the Payor will deliver to the Notes or Trustee and the Subsidiary Guarantees is due Paying Agent an Officer’s Certificate stating the fact that Additional Amounts will be payable and payable, if the Company or any Guarantor becomes obligated amount so payable and such other information necessary to enable the Paying Agent to pay Additional Amounts with respect to such Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises after the 30th day less than 45 days prior to the date on which relevant payment under or with respect to the Notes or the Subsidiary Guarantees is due and payabledate, in which case it will be paid promptly thereafter the Payor shall deliver such Officer’s Certificate and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary promptly as practicable after the date that is 30 days prior to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date, but no less than five Business Days prior thereto, and otherwise in accordance with the requirements of Euroclear or Clearstream, as applicable). Whenever Wherever in this Indenture Indenture, the Notes or any Guarantee there is mentioned, in any context, :
(a1) the payment of principal principal,
(and premium, if any), (b2) redemption prices or purchase prices in connection with a redemption or purchase of the Notes,
(3) interest, or
(c) interest or (d4) any other amount payable on or with respect to any of the Notes or the Subsidiary Guaranteesany Guarantee, such mention is reference shall be deemed to include mention of the payment of Additional Amounts provided for as described in this section Section 2.15 to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, Payor will pay any present or future stamp, court or documentary taxes Taxes, or any other excise or excise, property taxes, charges or similar levies Taxes that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial issue resale, registration or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the this Indenture or any other documents related document or instrument in relation thereto (limited, in case other than a transfer of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveNotes). The foregoing obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer a Payor is organized or any Guarantor is incorporated, engaged in business for tax purposes or otherwise considered to be a resident for tax Tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision or taxing authority or agency thereof or therein. The Issuer and Guarantors shall ensure that no proceeds raised under the Notes will be used in a manner which would constitute a “use of proceeds in Switzerland” as interpreted by Swiss tax authorities for the purposes of Swiss Withholding Tax (Verrechnungssteuer), except and to the extent that a written confirmation or tax ruling countersigned by the Swiss Federal Tax Administration (Eidgenössische Steuerverwaltung) has been obtained confirming that the intended “use of proceeds in Switzerland” if guaranteed by a Swiss resident Guarantor does not result in the Notes qualifying as a Swiss notes issue for Swiss Withholding Tax purposes.
Appears in 1 contract
