Grossing-up. 12.9.1 Subject to Clause 12.9.2, all sums payable to the Bank pursuant to or in connection with any Financing Document shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law. 12.9.2 If any deduction or withholding is required by law in respect of any payment due from Newco to the Bank pursuant to or in connection with any Financing Document, Newco shall: (a) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor; (b) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation or other authority in accordance with the applicable law; (c) increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) shall be equal to the amount which the Bank would have been entitled to receive in the absence of any requirement to make any deduction or withholding; and (d) promptly deliver or procure the delivery to the Bank of receipts evidencing each deduction or withholding which has been made. 12.9.3 Newco shall not be required to pay an additional amount under this Clause 12.9 if the payment in respect of which the deduction or withholding is required is a payment of interest on an Advance and: (a) at the time that Advance was made, the Bank was not a Qualifying Bank otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or (b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it). 12.9.4 If the Bank determines, in its absolute discretion, that it has received, realised, utilised and retained a Tax benefit by reason of any deduction or withholding in respect of which Newco has made an increased payment under this Clause 12.9. the Bank shall, provided that it has received all amounts which are then due and payable by the obligors under any Financing Document, pay to Newco (to the extent that the Bank can do so without prejudicing the amount of the benefit or repayment and the right of the Bank to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the Bank, in its absolute discretion shall determine, will leave the Bank in no worse position than it would have been in if the deduction or withholding had not been required, provided that: (a) the Bank shall have an absolute discretion as to the time at which and the order and manner in which it realises or utilizes any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit; (b) the Bank shall not be obliged to disclose any information regarding its business Tax affairs or Tax computations; (c) if the Bank has made a payment to Newco pursuant to this Clause 12.
Appears in 2 contracts
Samples: Credit Agreement (United Surgical Partners International Inc), Credit Agreement (United Surgical Partners International Inc)
Grossing-up. 12.9.1 19.9.1 Subject to Clause 12.9.219.9.2, all sums payable to the Bank a Finance Party pursuant to or in connection with any Financing Finance Document shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law.
12.9.2 19.9.2 If any deduction or withholding is required by law in respect of any payment due from Newco an Obligor to the Bank a Finance Party pursuant to or in connection with any Financing Finance Document, Newco that Obligor shall:
(a) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation authority or other authority in accordance with the applicable law;
(c) increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank payee (which expression when used in this Clause 19.9.2 shall mean each Finance Party) after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) shall be equal to the amount which the Bank payee would have been entitled to receive in the absence of any requirement to make any deduction or withholding; and
(d) promptly deliver or procure the delivery to the Bank relative payee of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco shall not be required 19.9.3 If the Facility Agent is obliged to pay an additional amount under this Clause 12.9 if the payment in respect of which the make any deduction or withholding from any payment to any Lender (an “Agency Payment”) which represents an amount or amounts received by that Agent from an Obligor under any Finance Document, that Obligor shall pay directly to that Lender such sum (an “Agency Compensating Sum”) as shall, after taking into account any deduction or withholding which that Obligor is required is a obliged to make from the Agency Compensating Sum, enable that Lender to receive, on the due date for payment of interest on the Agency Payment, an Advance and:
(a) at amount equal to the time Agency Payment which that Advance was made, Lender would have received in the Bank was not a Qualifying Bank otherwise than as a consequence absence of a Change occurring after the date of this Agreement (and the any obligation to deduct make any deduction or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it)withholding.
12.9.4 19.9.4 If the Bank determines, in its absolute discretion, any Lender determines that it has received, realised, utilised and retained a Tax benefit by reason of any deduction or withholding in respect of which Newco an Obligor has made an increased payment or paid an Agency Compensating Sum under this Clause 12.9. the Bank 19.9, that Lender shall, provided that it has each Finance Party have received all amounts which are then due and payable by the obligors Obligors under any Financing Finance Document, pay to Newco that Obligor (to the extent that the Bank that Lender can do so without prejudicing the amount of the benefit or repayment and the right of the Bank that Lender to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the Bank, in its absolute discretion shall determine, that will leave the Bank that Lender in no worse position than it would have been in if the deduction or withholding had not been required, provided that:
(a) the Bank each Lender shall have an absolute discretion as to the time at which and the order and manner in which it realises or utilizes utilises any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(b) the Bank no Lender shall not be obliged to disclose any information regarding its business business, Tax affairs or Tax computations;
(c) if the Bank a Lender has made a payment to Newco an Obligor pursuant to this Clause 1219.9.4 on account of any Tax benefit and it subsequently transpires that that Lender did not receive that Tax benefit, or received a lesser Tax benefit, that Obligor shall, on demand, pay to that Lender such sum as that Lender may determine as being necessary to restore its after-tax position to that which it would have been had no adjustment under this Clause 19.9.4 been made.
19.9.5 No Lender shall be obliged to make any payment under Clause 19.9.4 if, by doing so, it would contravene the terms of any applicable law or any notice, direction or requirement of any governmental or regulatory authority (whether or not having the force of law).
19.9.6 If an Obligor is required to make an increased payment for the account of a Lender under Clause 19.9.2, then, without prejudice to that obligation and so long as such requirement exists and subject to the Borrowers giving the Facility Agent and that Lender not less than ten (10) days’ prior notice (which shall be irrevocable), the Obligors may prepay all, but not part, of that Lender’s Participation in the Loans together with accrued interest on the amount prepaid. Any such prepayment shall be subject to Clause 24.1 (Breakage costs indemnity). On any such prepayment, the Commitment of the relevant Lender shall be automatically cancelled.
Appears in 2 contracts
Samples: Multicurrency Revolving Credit Agreement (Pra Group Inc), Term and Multicurrency Revolving Credit Facilities Agreement (Pra Group Inc)
Grossing-up. 12.9.1 9.9.1 Subject to Clause 12.9.2sub-clause 9.9.2, all sums payable to either Agent, the Issuing Bank or any Bank pursuant to or in connection with any Financing Document shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law.
12.9.2 9.9.2 If any deduction or withholding is required by law in respect of any payment due from Newco a Borrower to either Agent, the Issuing Bank or any Bank pursuant to or in connection with any Financing Document, Newco that Borrower shall:
(a) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation or other authority in accordance with the applicable law;
(c) (unless and to the extent the deduction or withholding arises as a direct result of the gross negligence or wilful default of the relevant Agent, the Issuing Bank or, as the case may be, such a Bank (the "PAYEE") or the failure of the Payee to comply with the relevant law or as a direct result of a failure of the Payee to file any relevant tax form or to provide any statements which have been reasonably requested by the relevant tax authorities within a reasonable time following a Change and which is within the control of the Payee to file or provide, as the case may be) increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank Payee after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) shall be equal to the amount which the Bank payee would have been entitled to receive in the absence of any requirement to make any deduction or withholding; and
(d) promptly deliver or procure the delivery to the Bank Payee of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco shall not be required 9.9.3 If either Agent is obliged to pay an additional amount under this Clause 12.9 if the payment in respect of which the make any deduction or withholding from any payment to any Bank (an "AGENCY PAYMENT") which represents an amount or amounts received by that Agent from a Borrower under any Financing Document, that Borrower shall pay directly to that Bank such sum (an "AGENCY COMPENSATING SUM") as shall, after taking into account any deduction or withholding which that Borrower is required is a obliged to make from the Agency Compensating Sum, enable that Bank to receive, on the due date for payment of interest on the Agency Payment, an Advance and:
(a) at amount equal to the time Agency Payment which that Advance was made, Bank would have received in the Bank was not a Qualifying Bank otherwise than as a consequence absence of a Change occurring after the date of this Agreement (and the any obligation to deduct make any deduction or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it)withholding.
12.9.4 9.9.4 If the any Bank determines, in its absolute discretion, that it has received, realised, utilised and retained a Tax benefit by reason of any deduction or withholding in respect of which Newco a Borrower has made an increased payment or paid an Agency Compensating Sum under this Clause 12.9. the 9.9, that Bank shall, provided that it has PROVIDED THAT the Agents, the Issuing Bank and each Bank have received all amounts which are then due and payable by the obligors under any Financing Document, pay to Newco that Borrower (to the extent that the that Bank can do so without prejudicing the amount of the benefit or repayment and the right of the that Bank to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the that Bank, in its absolute discretion acting in good faith shall determine, will leave the that Bank in no worse position than it would have been in if the deduction or withholding had not been required, provided thatPROVIDED THAT:
(a) the each Bank shall have an absolute discretion as to the time at which and the order and manner in which it realises or utilizes utilises any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(b) the no Bank shall not be obliged to disclose any information regarding its business business, Tax affairs or Tax computations;
(c) if the a Bank has made a payment to Newco a Borrower pursuant to this Clause 12sub-clause 9.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Dynea International Oy /)
Grossing-up. 12.9.1 10.9.1 Subject to Clause 12.9.210.9.2, all sums payable to the Bank Agent, the Arranger, or any Lender pursuant to or in connection with any Financing Document shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law.
12.9.2 10.9.2 If any deduction or withholding is required by law in respect of any payment due from Newco an Obligor to the Bank Agent or any Lender pursuant to or in connection with any Financing Document, Newco Document that Obligor shall:
(ai) promptly, on becoming aware that it must make a tax deduction (or if there is any change in the rate or the basis of a tax deduction), notify the Agent accordingly (if the Agent receives such notification from a Lender it shall notify that Obligor);
(ii) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(biii) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation or other authority in accordance with the applicable law;
(civ) increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank payee (which expression when used in this Clause 10.9.2 shall mean the Agent or any Lender) after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) shall be equal to the amount which the Bank payee would have been entitled to receive in the absence of any requirement to make any deduction or withholding; and
(dv) promptly deliver or procure the delivery to the Bank relative payee of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco 10.9.3 If the Agent is obliged to make any deduction or withholding from any payment to any Lender (an "AGENCY PAYMENT") which represents an amount or amounts received by the Agent from an Obligor under this Agreement:
(i) that Obligor shall pay directly to that Lender such sum (an "AGENCY COMPENSATING SUM") as shall, after taking into account any deduction or withholding which that Obligor is obliged to make from the agency compensating sum, enable that Lender to receive, on the due date for payment of the agency payment, an amount equal to the agency payment which that Lender would have received in the absence of any obligation to make any deduction or withholding; and
(ii) the Agent shall use its reasonable endeavours to take the action referred to in Clauses 10.9.2 (ii), (iii) and (v).
10.9.4 An Obligor shall not be required to pay an additional amount under this Clause 12.9 if 10.9 to the extent that the payment in respect of which the deduction or withholding is required is a payment of interest on a Participation in an Advance and that deduction or withholding is required on account of United Kingdom Tax and:
(ai) at the time that Advance Participation was made, the Bank Lender making that Participation was not a Qualifying Bank Lender otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if that Advance Participation had been made by a Qualifying Bank)Lender; or
(bii) at the time when the interest is paid, the Bank Lender for whose account it is paid is not beneficially entitled to it it, or, being beneficially entitled to it, the Bank Lender is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank Lender had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it).
12.9.4 If the Bank 10.9.5 any Lender determines, in its absolute discretion, that it has received, realised, utilised and retained a Tax benefit by reason of any deduction or withholding in respect of which Newco an Obligor has made an increased payment or paid an agency compensating sum under this Clause 12.9. the Bank 10.9, that Lender shall, provided that it has the Agent and each Lender have received all amounts which are then due and payable by the obligors that Obligor under any Financing Documentthis Agreement, pay to Newco that Obligor (to the extent that the Bank that Lender can do so without prejudicing the amount of the benefit or repayment and the right of the Bank that Lender to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the Bankthat Lender, in its absolute discretion shall determine, will leave the Bank that Lender in no worse position than it would have been in if the deduction or withholding had not been required, provided that:
(ai) the Bank each Lender shall have an absolute discretion as to the time at which and the order and manner in which it realises or utilizes utilises any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(bii) the Bank no Lender shall not be obliged to disclose any information regarding its business business, Tax affairs or Tax computations;
(ciii) if the Bank a Lender has made a payment to Newco an Obligor pursuant to the this Clause 1210.9.5 on account of any Tax benefit and it subsequently transpires that that Lender did not receive that Tax benefit, or received a lesser Tax benefit, that Obligor shall, on demand, pay to that Lender such sum as that Lender may determine as being necessary to restore its after tax position to that which it would have been had no adjustment under this Clause 10.9.5 been made. Any sums payable by that Obligor to a Lender under this Clause 10.9.5 shall be subject to Clause 19.7 (INDEMNITY PAYMENTS).
10.9.6 No Lender shall be obliged to make any payment under Clause 10.9.5 if, by doing so, it would contravene the terms of any applicable law or any notice, direction or requirement of any governmental or regulatory authority (whether or not having the force of law).
10.9.7 If an Obligor is required to make an increased payment for the account of a Lender under Clause 10.9.2, then, without prejudice to that obligation and so long as such requirement exists and subject to the Guarantor giving the Agent and that Lender not less than 10 days' prior notice (which shall be irrevocable), the Borrowers may prepay all, but not part, of that Lender's Participation in the Advances together with accrued interest on the amount prepaid. Any such prepayment shall be subject to Clause 24.1 (BREAKAGE COSTS INDEMNITY). On any such prepayment the Commitment of the relevant Lender shall be automatically cancelled.
Appears in 1 contract
Samples: Credit Agreement (Aon Corp)
Grossing-up. 12.9.1 Subject to Clause 12.9.2, all 10.1 All sums payable by the Warrantors to the Bank pursuant to or in connection with any Financing Document Buyer under this Tax Covenant shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law.
12.9.2 If any unless the deduction or withholding is required by law. If any deductions or withholdings are required by law in respect to be made from any of any payment due from Newco the sums payable under this Tax Covenant, the Warrantors shall pay to the Bank pursuant to or in connection with any Financing DocumentBuyer such sum as will, Newco shall:
(a) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation or other authority in accordance with the applicable law;
(c) increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made has been made, leave the Buyer with the same amount as a consequence of the increase) shall be equal to the amount which the Bank it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding. If any additional amount is paid pursuant to this paragraph by virtue of any deduction or withholding; and
(d) promptly deliver or procure the delivery withholding being required by law to the Bank of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco shall not be required to pay an additional amount under this Clause 12.9 if the payment in respect of which the deduction or withholding is required is a payment of interest on an Advance and:
(a) at the time that Advance was made, the Bank was not a Qualifying Bank otherwise than as a consequence of a Change occurring after the date of this Agreement (made and the obligation to deduct Buyer receives a tax credit, repayment or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it).
12.9.4 If the Bank determines, in its absolute discretion, that it has received, realised, utilised and retained a Tax other benefit by reason of any deduction or withholding in respect of which Newco has made the Warrantors have paid an increased payment additional amount, the Buyer shall pay to the Warrantors forthwith the amount of such tax credit, repayment or other benefit.
10.2 If the Buyer incurs a taxation liability which results from, or is calculated by reference to, any sum paid under this Clause 12.9. Tax Covenant, the Bank shallamount so payable shall be increased by such amount as will ensure that, provided after payment of the taxation liability, the Buyer is left with a net sum equal to the sum it would have received had no such taxation liability arisen.
10.3 If the Buyer would, but for the availability of a Buyer’s Relief, incur a taxation liability falling within paragraph 10.2, it shall be deemed for the purposes of that it has received all amounts which are then due paragraph to have incurred and payable by paid that liability
10.4 If the obligors under any Financing DocumentBuyer assigns the benefit of this Tax Covenant or this agreement, pay the Warrantors shall not be liable pursuant to Newco (paragraph 10.1 or paragraph 10.2, save to the extent that the Bank can do so without prejudicing the amount of the benefit or repayment and the right of the Bank to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the Bank, in its absolute discretion shall determine, will leave the Bank in no worse position than it Warrantors would have been in if the deduction or withholding so liable had not been required, provided that:
(a) the Bank shall have an absolute discretion as to the time at which and the order and manner in which it realises or utilizes any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(b) the Bank shall not be obliged to disclose any information regarding its business Tax affairs or Tax computations;
(c) if the Bank has made a payment to Newco pursuant to this Clause 12no such assignment occurred.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Build a Bear Workshop Inc)
Grossing-up. 12.9.1 Subject to Clause 12.9.216.1 Unless as otherwise required by applicable Law or agreed upon between the parties, all sums payable to the Bank pursuant to or in connection with any Financing Document under this Agreement shall be paid in full free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever. If any deductions or withholdings whatsoever except only as may be are required by law.
12.9.2 If any Law, the payor shall be obliged to pay to the recipient such sum as will after such deduction or withholding is required by law in respect of any payment due from Newco to has been made leave the Bank pursuant to or in connection with any Financing Document, Newco shall:
(a) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation or other authority in accordance recipient with the applicable law;
(c) increase the payment in respect of which the deduction or withholding is required so that the net same amount received by the Bank after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) shall be equal to the amount which the Bank it would have been entitled to receive in the absence of any such requirement to make any a deduction or withholding; and
(d) promptly deliver , provided that if either party to this Agreement shall have assigned or procure novated or declared a trust in respect of the delivery benefit in whole or in part of this Agreement or shall have changed its tax residence or the permanent establishment to which the Bank rights under this Agreement are allocated then the liability of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco shall not be required to pay an additional amount the other party under this Clause 12.9 16 shall be limited to that (if any) which it would have been had no such assignment, novation, declaration of trust or change taken place.
16.2 The recipient or expected recipient of a payment under this Agreement shall claim from the payment appropriate Tax Authority any exemption, rate reduction, refund, credit or similar benefit (including pursuant to any relevant double tax treaty) to which it is entitled in respect of which the deduction or withholding is required is a payment of interest on an Advance and:
(a) at the time that Advance was made, the Bank was not a Qualifying Bank otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it).
12.9.4 If the Bank determines, in its absolute discretion, that it has received, realised, utilised and retained a Tax benefit by reason of any deduction or withholding in respect of which Newco a payment has been or would otherwise be required to be made an increased pursuant to Clause 16.1 and, for such purposes, shall, within any applicable time limits, submit any claims, notices, returns or applications and send a copy of them to the payor.
16.3 If the recipient of a payment made under this Clause 12.9. the Bank shall, provided that it has received all amounts which are then due and Agreement receives a credit for or refund of any Tax payable by the obligors under it or similar benefit by reason of any Financing Document, pay to Newco (deduction or withholding for or on account of Tax then it shall reimburse to the extent that payor such part of such additional amounts paid pursuant to Clause 16.1 above as the Bank can do so without prejudicing the amount recipient of the benefit or repayment and payment certifies to the right of the Bank to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the Bank, in its absolute discretion shall determine, payor will leave the Bank it (after such reimbursement) in no better and no worse position than it would have been in arisen if the deduction or withholding payor had not been required, provided that:
(a) the Bank shall have an absolute discretion as required to the time at which and the order and manner in which it realises make such deduction or utilizes any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(b) the Bank shall not be obliged to disclose any information regarding its business Tax affairs or Tax computations;
(c) if the Bank has made a payment to Newco pursuant to this Clause 12withholding.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Shiloh Industries Inc)
Grossing-up. 12.9.1 (a) Subject to Clause 12.9.2paragraph (b) below, all sums payable to the Bank any Finance Party pursuant to or in connection with any Financing Document shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law.
12.9.2 If (b) Subject to Clause 21.5 (Conditions to Assignments and Transfers) if any deduction or withholding is required by law in respect of any payment due from Newco the Company to the Bank any Finance Party pursuant to or in connection with any Financing Document, Newco Document the Company shall:
(ai) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(bii) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation or other authority in accordance with the applicable law;
(ciii) increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank payee (which expression when used in this paragraph (b) shall mean any Finance Party) after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) shall be equal to the amount which the Bank payee would have been entitled to receive in the absence of any requirement to make any deduction or withholding; and
(div) promptly within 30 days of making a deduction or withholding deliver or procure the delivery to the Bank relative payee of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco shall not be required to pay an additional amount under this Clause 12.9 if the payment in respect of which reasonable evidence that the deduction or withholding is required is a has been made and the payment of interest on an Advance and:such amount to the relevant Taxation or other authority in accordance with paragraph (b)(ii) above.
(ac) at the time that Advance was made, the Bank was not a Qualifying Bank otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it).
12.9.4 If the any Bank determines, in its absolute discretion, that it has received, recovered, realised, utilised and retained a Tax benefit by reason of any deduction or withholding in respect of which Newco the Company has made an increased payment under this Clause 12.9. the 11.10, that Bank shall, provided that it each Finance Party has received all amounts which are then due and payable by the obligors Company under any Financing Document, pay to Newco the Company (to the extent that the that Bank can do so without prejudicing the amount of the benefit or repayment and the right of the that Bank to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the that Bank, in its absolute discretion shall determine, will leave the that Bank in no worse position than it would have been in if the deduction or withholding had not been required, provided that:
(ai) the each Bank shall have an absolute discretion as to the time at which and the order and manner in which it realises or utilizes utilises any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;; and
(bii) the no Bank shall not be obliged to disclose any information regarding its business business, Tax affairs or Tax computations;
(c) if the . If a Bank has made a payment to Newco the Company pursuant to this paragraph (c) on account of any Tax benefit and it subsequently transpires that that Bank did not receive that Tax benefit, or received a lesser Tax benefit, the Company shall, on demand, pay to that Bank such sum as that Bank may determine as being necessary to restore its after-tax position to that which it would have been had no adjustment under this paragraph (c) been made, provided that such sum shall not exceed the amount paid to the Company by the Bank pursuant to this paragraph (c).
(d) No Bank shall be obliged to make any payment under paragraph (c) above if, by doing so, it would contravene the terms of any applicable law or any notice, direction or requirement of any governmental or regulatory authority (whether or not having the force of law).
(e) If the Company is required to make an increased payment for the account of a Bank under paragraph (b) above, then, without prejudice to that obligation and so long as such requirement exists and subject to the Company giving the Facility Agent and that Bank not less than five Business Days' prior notice (which shall be irrevocable), the Company may prepay all, but not part, of that Bank's Participations in the Advances together with accrued interest on the amount prepaid. Any such prepayment shall be subject to Clause 1222.1 (Breakage Costs Indemnity). On any such prepayment the Commitment of the relevant Bank shall be automatically cancelled.
(f) If, and to the extent that, the effect of Clause 10.2 (Increased Costs) (such as it relates to Tax) or Clause 11.10(b) (Grossing-up) can be mitigated by virtue of the provisions of any double tax treaty or convention relating to the relief from double taxation on income and capital (a Double Tax Convention) or by virtue of the provisions of the QPP Regulations (whether by a claim to repayment of any Tax, a claim to make payments without any deduction or withholding or otherwise) each Bank agrees to do all such things as are reasonably requested by the Company (including, where a Bank holds a passport under the HM Revenue & Customs Double Tax Treaty Passport scheme and the relevant Double Tax Convention would reduce the relevant deduction or withholding, confirming its scheme reference number and its jurisdiction of tax residence (in the case of (i) an Original Bank opposite that Bank's name in Schedule 1 (The Original Banks); and (ii) a Bank that is not an Original Bank in the documentation which it executes on becoming a Party to this Agreement as a Bank) or, where relief is available under the provisions of the QPP Regulations, providing a QPP Certificate) with a view to submitting any forms, documents or completing any reasonable procedural formalities within a reasonable time after its receipt from the Company of a notice requesting it to do so for the purpose of ensuring the application of such Double Tax Convention or QPP Regulations, provided that no Bank shall be required pursuant to this paragraph (f) to take any action which would entail the incurring of any cost or liability (other than reasonable internal administrative costs in completing and submitting the relevant forms or documents, including, for the avoidance of doubt, IRS forms W-8 or W-9, if applicable).
(g) No additional amount will be payable to a Bank under Clause 10.2 (Increased Costs) or Clause 11.10(b) (Grossing-up) in respect of any deduction, withholding or payment of Tax to the extent that such additional amount would not be payable if that Bank had complied with its obligations under paragraph (f) above or if that Bank had been a Tax Qualifying Bank (as defined below) but is not or has ceased to be a Tax Qualifying Bank (as defined below) (unless the reason 0092651-0000422 EUO1: 2010847973.17 50 the Company is obliged to make such deduction, withholding or payment of Tax is due to a change in any law or regulation, or in the interpretation or application thereof, or in any practice or concession of any relevant taxation authority after the date that Bank became party to this Agreement). Each Bank confirms to the Company that, as at the date such Bank becomes a Party, save to the extent it has notified the Facility Agent and the Company in writing otherwise, it is (or, where appropriate, the Designated Entity which is its affiliate is) a person to whom payments by the Company may be made without deduction or withholding on account of United Kingdom tax whether by reason of (A) an applicable taxation treaty between the United Kingdom and the country in which the relevant bank is, or is treated as, resident or carrying on business or (B) otherwise, including in each case where such payments may be made without deduction or withholding on completion of procedural formalities (a Tax Qualifying Bank) and, if it is able to confirm that it is a Tax Qualifying Bank on the date on which such Bank becomes a Party, it shall notify the Facility Agent and the Company in writing should it become aware that it has ceased to be a Tax Qualifying Bank or, following completion of procedural formalities to allow such payments to be made without deduction or withholding, that such payments may no longer be made without deduction or withholding by virtue of the procedural formalities completed by it.
(h) No additional amount will be payable to a Bank under Clause 10.2 (Increased Costs) or this Clause 11.10 (Grossing-up) in respect of any FATCA Deduction.
Appears in 1 contract
Grossing-up. 12.9.1 Subject to Clause 12.9.2, all sums payable to the Bank pursuant to or in connection with any Financing Document shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law.
12.9.2 If any deduction or withholding is required by law in respect of any payment due from Newco to the Bank pursuant to or in connection with any Financing Document, Newco shall:
(a) ensure or procure that HCC undertakes to each of the deduction or withholding is made and Sellers that it does will not exceed the minimum legal requirement therefor;
issue a reduced number of HCC Shares or a reduced principal amount of Initial Loan Notes or Deferred Loan Notes or Earnout Loan Notes (b) pay, or procure the payment oftogether, the full amount deducted or withheld to the relevant Taxation or other authority in accordance with the applicable law;
(c"Notes") increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) shall be equal to the amount which the Bank would have been entitled to receive in the absence of any requirement to make any deduction or withholding; and
(d) promptly deliver or procure the delivery to the Bank of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco shall not be required to pay an additional amount under this Clause 12.9 if the payment in respect of which the deduction or withholding is required is a payment of interest on an Advance and:
(a) at the time that Advance was made, the Bank was not a Qualifying Bank otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it).
12.9.4 If the Bank determines, in its absolute discretion, that it has received, realised, utilised and retained a Tax benefit by reason of any deduction or withholding on account of Tax save as may be required by law. HCC undertakes to each Seller that, subject to Sections 5.6(b) and 5.6(c) below, in the event that HCC is required by law to issue to the Seller a reduced number of HCC Shares or a reduced principal amount of Notes as a result of the imposition of withholding tax in the United States in respect of which Newco has made an increased payment under such issue, HCC will issue to the Seller such additional HCC Shares or Notes of the same description as will leave the Seller, after such withholding or deduction, with the number of HCC Shares or the principal amount of Notes (as the case may be) specified in this Clause 12.9Agreement. In that event, the Bank shallrelevant Seller will use all reasonable endeavours to obtain a credit against his Tax liabilities or other Tax relief for the withholding or deduction giving rise to the issue of the additional HCC Shares or Notes and, provided that it has received all amounts which are then due and payable by upon obtaining the obligors under any Financing Documentbenefit of such credit or other Tax relief, shall pay to Newco HCC such amount as will leave him in no better and no worse position than he would have been in had no such withholding or deduction been required.
(b) The Seller may not claim under Section 5.6(a) to the extent that the Bank can do so without prejudicing withholding or deduction would not have arisen had such Seller, throughout the amount of period from Closing until and including the benefit date on which the relevant HCC Shares or repayment and the right of the Bank to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the Bank, in its absolute discretion shall determine, will leave the Bank in no worse position than it would have been in if the deduction or withholding had not been required, provided thatNotes were issued:
(ai) if an individual, remained resident in the Bank shall have an absolute discretion as United Kingdom for United Kingdom Tax purposes or been a resident or a citizen of the United States for United States Tax purposes or, if a corporation, been a company incorporated in the United States; and
(ii) filed in good time all forms, claims or other documents reasonably requested by HCC to the time at which and the order and manner in which it realises or utilizes be lodged with any Tax benefit authority or other person (and shall not be obliged to arrange its business or its Tax affairs in any particular way complied with all other procedures reasonably requested by HCC) in order to be eligible for secure the benefit of any credit exemption from or refund or similar benefit;
(b) the Bank shall not be obliged to disclose any information regarding its business Tax affairs or Tax computations;reduction in withholding.
(c) if The Seller may not claim under Section 5.6(a) to the Bank has made extent that the withholding or deduction arises under the laws of a payment jurisdiction other than the United States or the United Kingdom and is attributable to Newco pursuant the existence of a connection between the Seller and that jurisdiction other than through the holding of his HCC Shares or Notes provided that this Section 5.6(c) shall not apply to this Clause 12prevent a Seller from making such a claim where the Seller's connection with the relevant jurisdiction arises out of the Seller's employment by HCC or any of its subsidiaries.
(d) Section 5.6(b)(i) above shall not preclude a Seller who is an individual from claiming under Section 5.6(a) above to the extent that his failure to be resident in the United Kingdom is due to his employment by HCC or any of its subsidiaries.
Appears in 1 contract
Samples: Share Purchase Agreement (HCC Insurance Holdings Inc/De/)
Grossing-up. 12.9.1 19.9.1 Subject to Clause 12.9.219.9.2, all sums payable to the Bank a Finance Party pursuant to or in connection with any Financing Finance Document shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law.
12.9.2 19.9.2 If any deduction or withholding is required by law in respect of any payment due from Newco an Obligor to the Bank a Finance Party pursuant to or in connection with any Financing Finance Document, Newco that Obligor shall:
(a) a. ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) b. pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation authority or other authority in accordance with the applicable law;
(c) c. increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank payee (which expression when used in this Clause 19.9.2 shall mean each Finance Party) after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) shall be equal to the amount which the Bank payee would have been entitled to receive in the absence of any requirement to make any deduction or withholding; and
(d) d. promptly deliver or procure the delivery to the Bank relative payee of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco shall not be required 19.9.3 If the Facility Agent is obliged to pay an additional amount under this Clause 12.9 if the payment in respect of which the make any deduction or withholding from any payment to any Lender (an “Agency Payment”) which represents an amount or amounts received by that Agent from an Obligor under any Finance Document, that Obligor shall pay directly to that Lender such sum (an “Agency Compensating Sum”) as shall, after taking into account any deduction or withholding which that Obligor is required is a obliged to make from the Agency Compensating Sum, enable that Lender to receive, on the due date for payment of interest on the Agency Payment, an Advance and:
(a) at amount equal to the time Agency Payment which that Advance was made, Lender would have received in the Bank was not a Qualifying Bank otherwise than as a consequence absence of a Change occurring after the date of this Agreement (and the any obligation to deduct make any deduction or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it)withholding.
12.9.4 19.9.4 If the Bank determines, in its absolute discretion, any Lender determines that it has received, realised, utilised and retained a Tax benefit by reason of any deduction or withholding in respect of which Newco an Obligor has made an increased payment or paid an Agency Compensating Sum under this Clause 12.9. the Bank 19.9, that Lender shall, provided that it has each Finance Party have received all amounts which are then due and payable by the obligors Obligors under any Financing Finance Document, pay to Newco that Obligor (to the extent that the Bank that Lender can do so without prejudicing the amount of the benefit or repayment and the right of the Bank that Lender to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the Bank, in its absolute discretion shall determine, that will leave the Bank that Lender in no worse position than it would have been in if the deduction or withholding had not been required, provided that:
(a) the Bank a. each Lender shall have an absolute discretion as to the time at which and the order and manner in which it realises or utilizes utilises any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(b) the Bank b. no Lender shall not be obliged to disclose any information regarding its business business, Tax affairs or Tax computations;
(c) c. if the Bank a Lender has made a payment to Newco an Obligor pursuant to this Clause 1219.9.4 on account of any Tax benefit and it subsequently transpires that that Lender did not receive that Tax benefit, or received a lesser Tax benefit, that Obligor shall, on demand, pay to that Lender such sum as that Lender may determine as being necessary to restore its after-tax position to that which it would have been had no adjustment under this Clause 19.9.4 been made.
19.9.5 No Lender shall be obliged to make any payment under Clause 19.9.4 if, by doing so, it would contravene the terms of any applicable law or any notice, direction or requirement of any governmental or regulatory authority (whether or not having the force of law).
19.9.6 If an Obligor is required to make an increased payment for the account of a Lender under Clause 19.9.2, then, without prejudice to that obligation and so long as such requirement exists and subject to the Borrowers giving the Facility Agent and that Lender not less than ten (10) days’ prior notice (which shall be irrevocable), the Obligors may prepay all, but not part, of that Lender’s Participation in the Loans together with accrued interest on the amount prepaid. Any such prepayment shall be subject to Clause 24.1 (Breakage costs indemnity). On any such prepayment, the Commitment of the relevant Lender shall be automatically cancelled.
Appears in 1 contract
Samples: Multicurrency Revolving Credit Facility Agreement (Pra Group Inc)
Grossing-up. 12.9.1 Subject to Clause 12.9.2, all 34.1 All sums payable to the Bank pursuant to or in connection with any Financing Document under this Agreement shall be paid in full free and clear of all deductions deductions, withholdings, set-offs or withholdings counterclaims whatsoever except save only as may be required by lawlaw or as otherwise agreed.
12.9.2 34.2 If any deductions or withholdings are required by law from any payment under this Agreement (other than payment of interest), the payor shall be obliged to pay to the recipient such sum as will after such deduction or withholding is required by law in respect of any payment due from Newco to has been made leave the Bank pursuant to or in connection with any Financing Document, Newco shall:
(a) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation or other authority in accordance recipient with the applicable law;
(c) increase the payment in respect of which the deduction or withholding is required so that the net same amount received by the Bank after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) shall be equal to the amount which the Bank it would have been entitled to receive in the absence of any such requirement to make any a deduction or withholding; and
(d) promptly deliver , provided that if any Party has assigned or procure novated or declared a trust in respect of the delivery benefit in whole or in part of this Agreement in accordance with Clause 23 or shall have changed its tax residence or the permanent establishment to which the Bank rights under this Agreement are allocated then the liability of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco shall not be required to pay an additional amount the other Parties under this Clause 12.9 34.2 shall be limited to that (if any) which it would have been had no such assignment, novation, declaration of trust or change taken place.
34.3 The recipient or expected recipient of a payment under this Agreement shall claim from the payment appropriate Taxation Authority any exemption, rate reduction, refund, credit or similar benefit (including pursuant to any relevant double tax treaty) to which it is entitled in respect of which the deduction or withholding is required is a payment of interest on an Advance and:
(a) at the time that Advance was made, the Bank was not a Qualifying Bank otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it).
12.9.4 If the Bank determines, in its absolute discretion, that it has received, realised, utilised and retained a Tax benefit by reason of any deduction or withholding in respect of which Newco a payment has been or would otherwise be required to be made an increased pursuant to Clause 34.2 and, for such purposes, shall, within any applicable time limits, submit any claims, notices, returns or applications and send a copy of them to the payor.
34.4 If the recipient of a payment made under this Clause 12.9. the Bank shall, provided that it has received all amounts which are then due and Agreement receives a credit for or refund of any Taxation payable by the obligors it or similar benefit by reason of any deduction or withholding for or on account of Taxation in respect of which payment has been made under any Financing DocumentClause 34.2, pay to Newco (then it shall reimburse to the extent that payor such part of such additional amounts paid pursuant to Clause 34.2 as the Bank can do so without prejudicing the amount recipient of the benefit or repayment and the right of the Bank to obtain any other benefit, relief or allowance which may be available to itpayment determines (acting reasonably) such amount, if any, as the Bank, in its absolute discretion shall determine, will leave the Bank it (after such reimbursement) in no better and no worse position than it would have been in arisen if the deduction or withholding payor had not been required, provided that:
(a) the Bank shall have an absolute discretion as required to the time at which and the order and manner in which it realises make such deduction or utilizes any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(b) the Bank shall not be obliged to disclose any information regarding its business Tax affairs or Tax computations;
(c) if the Bank has made a payment to Newco pursuant to this Clause 12withholding.
Appears in 1 contract
Samples: Share Sale and Purchase Agreement (Icu Medical Inc/De)
Grossing-up. 12.9.1 Subject All Applicable Taxes (other than Applicable Taxes on the overall net income of the Bank, which are not deducted from a payment hereunder) shall be paid by the Borrower promptly upon its becoming aware that it is obliged to Clause 12.9.2pay the same. The Borrower will indemnify the Bank in respect of all such Applicable Taxes (other than Applicable Taxes on the overall net income of the Bank which are not deducted from a payment hereunder). In addition, all sums if any Applicable Taxes or amounts in respect thereof must be deducted from any amount payable or paid by the Borrower under any Agreement (or payable or paid by the Bank under any Agreement), the Borrower shall pay such additional amounts as may be necessary to ensure that the Bank receives a net amount equal to the full amount which it would have received had payment not been made subject to such Applicable Tax. The Borrower shall deliver to the Bank, within 30 days of each payment, evidence satisfactory to the Bank pursuant to or in connection with any Financing Document shall be paid in full free and clear of (including all deductions or withholdings whatsoever except only as may be required by law.
12.9.2 If any deduction or withholding is required by law in respect of any payment due from Newco relevant tax receipts) that such Applicable Taxes have been duly remitted to the Bank pursuant to or in connection with any Financing Document, Newco shall:
(a) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation or other authority in accordance with the applicable law;
(c) increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) shall be equal to the amount which the Bank would have been entitled to receive in the absence of any requirement to make any deduction or withholding; and
(d) promptly deliver or procure the delivery to the Bank of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco shall not be required to pay an additional amount under this Clause 12.9 if the payment in respect of which the deduction or withholding is required is a payment of interest on an Advance and:
(a) at the time that Advance was made, the Bank was not a Qualifying Bank otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it).
12.9.4 appropriate authority. If the Bank determines, in its absolute sole discretion, that it has received, realised, utilised and retained received a Tax benefit by reason refund of any deduction Applicable Taxes as to which it has been indemnified by the Borrower or withholding in with respect to which the Borrower has paid additional amounts pursuant to this Section 11,2, it shall pay to the Borrower within 30 days of which Newco has made receipt an increased payment amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Clause 12.9. Section 11.2 with respect to the Bank shallApplicable Taxes giving rise to such refund), net of all out-of-pocket expenses of the Bank, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that it has received all amounts which are then due and payable the Borrower, upon the request of the Bank, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the obligors under any Financing Document, pay to Newco (relevant Governmental Authority) to the extent that Bank in the event the Bank can do so without prejudicing the amount of the benefit or repayment and the right of is required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require the Bank to obtain make available its tax returns (or any other benefit, relief or allowance information relating to its taxes which may be available to itit deems confidential) such amount, if any, as the Bank, in its absolute discretion shall determine, will leave the Bank in no worse position than it would have been in if the deduction or withholding had not been required, provided that:
(a) the Bank shall have an absolute discretion as to the time at which and the order and manner in which it realises Borrower or utilizes any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(b) the Bank shall not be obliged to disclose any information regarding its business Tax affairs or Tax computations;
(c) if the Bank has made a payment to Newco pursuant to this Clause 12other person.
Appears in 1 contract
Samples: Revolving Facility Agreement (Vishay Precision Group, Inc.)
Grossing-up. 12.9.1 11.9.1 Subject to Clause 12.9.2sub-clause 11.9.2, all sums payable to the Bank any Finance Party pursuant to or in connection with any Financing Document shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law.
12.9.2 11.9.2 If any deduction or withholding is required by law in respect of any payment due from Newco a Borrower to the Bank any Finance Party pursuant to or in connection with any Financing Document, Newco that Borrower shall:
(a) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation or other authority in accordance with the applicable law;
(c) (unless and to the extent the deduction or withholding arises as a direct result of the negligence or wilful default of the relevant Finance Party or the failure of the relevant Finance Party to file any relevant tax form or to provide any statements which have been reasonably requested by the relevant tax authorities within a reasonable time following a Change and which is within the control of the relevant Finance Party to file or provide, as the case may be) increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank payee (which expression when used in this sub-clause 11.9.2 shall mean any Finance Party) after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) shall be equal to the amount which the Bank payee would have been entitled to receive in the absence of any requirement to make any deduction or withholding; and
(d) promptly deliver or procure the delivery to the Bank relative payee of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco shall not be required 11.9.3 If the Facility Agent is obliged to pay an additional amount under this Clause 12.9 if the payment in respect of which the make any deduction or withholding from any payment to any Bank (an "AGENCY PAYMENT") which represents an amount or amounts received by the Facility Agent from a Borrower under any Financing Document, that Borrower shall pay directly to that Bank such sum (an "AGENCY COMPENSATING SUM") as shall, after taking into account any deduction or withholding which that Borrower is required is a obliged to make from the Agency Compensating Sum, enable that Bank to receive, on the due date for payment of interest on the Agency Payment, an Advance and:
(a) at amount equal to the time Agency Payment which that Advance was made, Bank would have received in the Bank was not a Qualifying Bank otherwise than as a consequence absence of a Change occurring after the date of this Agreement (and the any obligation to deduct make any deduction or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it)withholding.
12.9.4 11.9.4 If the any Bank determines, in its absolute discretion, that it has received, realised, utilised and retained a Tax benefit by reason of any deduction or withholding in respect of which Newco a Borrower has made an increased payment or paid an Agency Compensating Sum under this Clause 12.9. the 11.9, that Bank shall, provided that it has PROVIDED THAT the Finance Parties have received all amounts which are then due and payable by the obligors under any Financing Document, pay to Newco that Borrower (to the extent that the that Bank can do so without prejudicing the amount of the benefit or repayment and the right of the that Bank to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the that Bank, in its absolute discretion shall determine, will leave the that Bank in no worse position than it would have been in if the deduction or withholding had not been required, provided thatPROVIDED THAT:
(a) the each Bank shall have an absolute discretion as to the time at which and the order and manner in which it realises or utilizes utilises any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(b) the no Bank shall not be obliged to disclose any information regarding its business business, Tax affairs or Tax computations;
(c) if the a Bank has made a payment to Newco a Borrower pursuant to this Clause 12.sub-clause 11.9.4 on account of any Tax benefit and it subsequently transpires that that Bank did not receive that Tax benefit, or received a lesser Tax benefit, that Borrower shall, on demand, pay to that Bank such sum as that Bank may determine as being necessary to restore its after-tax position to that which it would have been had no adjustment under this sub-clause 11.9.4
Appears in 1 contract
Samples: Credit Agreement (Inverness Medical Innovations Inc)
Grossing-up. 12.9.1 19.9.1 Subject to Clause 12.9.219.9.2, all sums payable to the Bank a Finance Party pursuant to or in connection with any Financing Finance Document shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law.
12.9.2 19.9.2 If any deduction or withholding is required by law in respect of any payment due from Newco an Obligor to the Bank a Finance Party pursuant to or in connection with any Financing Finance Document, Newco that Obligor shall:
(a) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation authority or other authority in accordance with the applicable law;
(c) increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank payee (which expression when used in this Clause 19.9.2 shall mean each Finance Party) after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) shall be equal to the amount which the Bank payee would have been entitled to receive in the absence of any requirement to make any deduction or withholding; and
(d) promptly deliver or procure the delivery to the Bank relative payee of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco shall not be required 19.9.3 If the Facility Agent is obliged to pay an additional amount under this Clause 12.9 if the payment in respect of which the make any deduction or withholding from any payment to any Lender (an “Agency Payment”) which represents an amount or amounts received by that Agent from an Obligor under any Finance Document, that Obligor shall pay directly to that Lender such sum (an “Agency Compensating Sum”) as shall, after taking into account any deduction or withholding which that Obligor is required is a obliged to make from the Agency Compensating Sum, enable that Lender to receive, on the due date for payment of interest on the Agency Payment, an Advance and:
(a) at amount equal to the time Agency Payment which that Advance was made, Lender would have received in the Bank was not a Qualifying Bank otherwise than as a consequence absence of a Change occurring after the date of this Agreement (and the any obligation to deduct make any deduction or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it)withholding.
12.9.4 19.9.4 If the Bank determines, in its absolute discretion, any Lender determines that it has received, realised, utilised and retained a Tax benefit by reason of any deduction or withholding in respect of which Newco an Obligor has made an increased payment or paid an Agency Compensating Sum under this Clause 12.9. the Bank 19.9, that Lender shall, provided that it has each Finance Party have received all amounts which are then due and payable by the obligors Obligors under any Financing Finance Document, pay to Newco that Obligor (to the extent that the Bank that Lender can do so without prejudicing the amount of the benefit or repayment and the right of the Bank that Lender to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the Bank, in its absolute discretion shall determine, that will leave the Bank that Lender in no worse position than it would have been in if the deduction or withholding had not been required, provided that:
(a) the Bank each Lender shall have an absolute discretion as to the time at which and the order and manner in which it realises or utilizes utilises any Tax benefit and shall not be obliged to #3462336/1 84 (117) arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(b) the Bank no Lender shall not be obliged to disclose any information regarding its business business, Tax affairs or Tax computations;
(c) if the Bank a Lender has made a payment to Newco an Obligor pursuant to this Clause 1219.9.4 on account of any Tax benefit and it subsequently transpires that that Lender did not receive that Tax benefit, or received a lesser Tax benefit, that Obligor shall, on demand, pay to that Lender such sum as that Lender may determine as being necessary to restore its after-tax position to that which it would have been had no adjustment under this Clause 19.9.4 been made.
19.9.5 No Lender shall be obliged to make any payment under Clause 19.9.4 if, by doing so, it would contravene the terms of any applicable law or any notice, direction or requirement of any governmental or regulatory authority (whether or not having the force of law).
19.9.6 If an Obligor is required to make an increased payment for the account of a Lender under Clause 19.9.2, then, without prejudice to that obligation and so long as such requirement exists and subject to the Borrowers giving the Facility Agent and that Lender not less than ten (10) days’ prior notice (which shall be irrevocable), the Obligors may prepay all, but not part, of that Lender’s Participation in the Loans together with accrued interest on the amount prepaid. Any such prepayment shall be subject to Clause 24.1 (Breakage costs indemnity). On any such prepayment, the Commitment of the relevant Lender shall be automatically cancelled.
Appears in 1 contract
Samples: Multicurrency Revolving Credit Facility Agreement (Pra Group Inc)
Grossing-up. 12.9.1 19.9.1 Subject to Clause 12.9.219.9.2, all sums payable to the Bank a Finance Party pursuant to or in connection with any Financing Finance Document shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law.
12.9.2 19.9.2 If any deduction or withholding is required by law in respect of any payment due from Newco an Obligor to the Bank a Finance Party pursuant to or in connection with any Financing Finance Document, Newco that Obligor shall:
(a) a. ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) b. pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation authority or other authority in accordance with the applicable law;
(c) c. increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank payee (which expression when used in this Clause 19.9.2 shall mean each Finance Party) after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) shall be equal to the amount which the Bank payee would have been entitled to receive in the absence of any requirement to make any deduction or withholding; and
(d) d. promptly deliver or procure the delivery to the Bank relative payee of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco shall not be required 19.9.3 If the Facility Agent is obliged to pay an additional amount under this Clause 12.9 if the payment in respect of which the make any deduction or withholding from any payment to any Lender (an “Agency Payment”) which represents an amount or amounts received by that Agent from an Obligor under any Finance Document, that Obligor shall pay directly to that Lender such sum (an “Agency Compensating Sum”) as shall, after taking into account any deduction or withholding which that Obligor is required is a obliged to make from the Agency Compensating Sum, enable that Lender to receive, on the due date for payment of interest on the Agency Payment, an Advance and:
(a) at amount equal to the time Agency Payment which that Advance was made, Lender would have received in the Bank was not a Qualifying Bank otherwise than as a consequence absence of a Change occurring after the date of this Agreement (and the any obligation to deduct make any deduction or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it)withholding.
12.9.4 19.9.4 If the Bank determines, in its absolute discretion, any Lender determines that it has received, realised, utilised and retained a Tax benefit by reason of any deduction or withholding in respect of which Newco an Obligor has made an increased payment or paid an Agency Compensating Sum under this Clause 12.9. the Bank 19.9, that Lender shall, provided that it has each Finance Party have received all amounts which are then due and payable by the obligors Obligors under any Financing Finance Document, pay to Newco that Obligor (to the extent that the Bank that Lender can do so without prejudicing the amount of the benefit or repayment and the right of the Bank that Lender to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the Bank, in its absolute discretion shall determine, that will leave the Bank that Lender in no worse position than it would have been in if the deduction or withholding had not been required, provided that:
(a) the Bank a. each Lender shall have an absolute discretion as to the time at which and the order and manner in which it realises or utilizes utilises any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(b) the Bank b. no Lender shall not be obliged to disclose any information regarding its business business, Tax affairs or Tax computations;
(c) c. if the Bank a Lender has made a payment to Newco an Obligor pursuant to this Clause 1219.9.4 on account of any Tax benefit and it subsequently transpires that that Lender did not receive that Tax benefit, or received a lesser Tax benefit, that Obligor shall, on demand, pay to that Lender such sum as that Lender may determine as being necessary to restore its after-tax position to that which it would have been had no adjustment under this Clause 19.9.4 been made.
19.9.5 No Lender shall be obliged to make any payment under Clause 19.9.4 if, by doing so, it would contravene the terms of any applicable law or any notice, direction or requirement of any governmental or regulatory authority (whether or not having the force of law).
19.9.6 If an Obligor is required to make an increased payment for the account of a Lender under Clause 19.9.2, then, without prejudice to that obligation and so long as such requirement exists and subject to the Borrowers giving the Facility Agent and that Lender not less than ten (10) days’ prior notice (which shall be irrevocable), the Obligors may prepay all, but not part, of that Lender’s Participation in the Loan together with accrued interest on the amount prepaid. Any such prepayment shall be subject to Clause 24.1 (Breakage costs indemnity). On any such prepayment, the Commitment of the relevant Lender shall be automatically cancelled.
Appears in 1 contract
Samples: Multicurrency Revolving Credit Facility Agreement (Pra Group Inc)
Grossing-up. 12.9.1 (a) Subject to Clause 12.9.212.3(b) below, all sums payable to the Bank pursuant to or in connection with any Financing Document shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law.
12.9.2 If any deduction or withholding if a Tax Deduction is required by law in respect of any payment due from Newco sum payable by an Obligor to Endo under the Bank pursuant to or in connection with any Financing DocumentFinance Documents, Newco shall:
(a) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation or other authority in accordance with the applicable law;
(c) Obligor shall increase the payment in respect of which the deduction or withholding is required such sum so that the net amount received by the Bank Endo after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) Tax Deduction shall be equal to the amount which the Bank Endo would have been entitled to receive in the absence of any requirement to make any deduction or withholding; andthat Tax Deduction.
(db) promptly deliver or procure the delivery to the Bank of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco shall An Obligor is not be required to pay make an additional amount increased payment to Endo under this Clause 12.9 12.3(a) above for a Tax Deduction if on the date on which the payment in respect of which the deduction or withholding is required is a payment of interest on an Advance andmade:
(ai) at the time payment could have been made to Endo without a Tax Deduction but for the sole fact that, on that Advance was madedate, the Bank was Endo is not or has ceased to be a Qualifying Bank otherwise Lender other than as a consequence result of a Change occurring any change after the date of this Agreement in (and or in the obligation to deduct published interpretation, administration or withhold would not have arisen if that Advance had been made by a Qualifying Bank)application of) any law, directive, treaty or regulation or any published practice or concession of any relevant Taxing authority; or
(bii) at the time when relevant Obligor could have made the interest is paidpayment to Endo without a Tax Deduction had Endo complied with its obligations under Clause 12.3(c) below, provided that, pending receipt of the authorisation referred to in Clause 12.3(c) below, this Clause 12.3(b)(ii) shall not apply (and the relevant Obligor shall be required to make an increased payment to Endo under Clause 12.3(a) above for a Tax Deduction) if Endo has reasonably promptly taken all such steps as are reasonably practicable to comply with its obligations under Clause 12.3(c) following the date of this Agreement or the relevant request from the Obligor (as applicable).
(c) Endo and the Obligors shall co-operate in completing, as soon as reasonably practicable after the date of this Agreement, any procedural formalities necessary for the Obligors to obtain authorisation to make a payment under this Agreement without a Tax Deduction (including, for the avoidance of doubt, the Bank is not beneficially entitled completion and submission to the Taxing authority in Endo's country of incorporation (or, if different, its country of residence for the purposes of the relevant double taxation agreement) of appropriate forms and documents that are provided to it or, being beneficially entitled by the Obligors).
(d) If an Obligor makes a payment to it, the Bank is Endo without a Tax Deduction in circumstances where Endo has not within the charge notified that Obligor that it has ceased to United Kingdom corporation tax as respects it otherwise be a Qualifying Lender (other than as a consequence result of a Change occurring any change after the date of this Agreement in, or in the published interpretation, administration or application of, any law or treaty, or any published practice or concession of any relevant Taxing authority):
(i) where any liability in respect of an amount which should have been deducted or withheld is imposed, levied or assessed against an Obligor, Endo shall, within three (3) Business Days of demand by the relevant Obligor, indemnify that Obligor against such liability or payment together with any interest, penalties and expenses payable or incurred in connection with the obligation same; and
(ii) Endo authorises the Obligors to deduct or withhold would not have arisen if the Bank had been beneficially entitled amounts equivalent to the interest Tax Deduction which should have been made from subsequent payments to Endo under this Agreement and had been within to pay such amounts to the charge to United Kingdom corporation tax as respects it)relevant Taxing authority provided that any amounts withheld in accordance with Clause 12.3(d)(ii) shall not also be recoverable under Clause 12.3(d)(i) above.
12.9.4 (e) If the Bank determines, an Obligor makes a payment under Clause 12.3(a) above (a "TAX PAYMENT") and Endo determines in its absolute discretion, sole discretion that:
(i) a Tax Credit is attributable to that it Tax Payment; and
(ii) Endo has received, realisedobtained, utilised and retained a that Tax benefit by reason of any deduction or withholding in respect of which Newco has made an increased payment under this Clause 12.9. the Bank Credit, Endo shall, provided that it has received all amounts which are then due and payable by the obligors under any Financing Document, pay to Newco (to the extent that the Bank it can do so without prejudicing prejudice to the amount retention of the benefit or repayment and Tax Credit, pay such amount to the right of the Bank to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, relevant Obligor as the Bank, Endo determines in its absolute discretion shall determine, to be attributable to the Tax Payment and will leave it (after that payment to the Bank Obligor) in no worse the same after-Tax position than as it would have been in if had the deduction or withholding had Tax Payment not been required, provided that:
(a) required to be made by that Obligor. Nothing herein contained shall interfere with the Bank shall have an absolute discretion as to the time at which and the order and manner in which it realises or utilizes any Tax benefit and shall not be obliged right of Endo to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(b) the Bank shall not be obliged whatever manner it thinks fit nor oblige it to disclose any information regarding relating to its business Tax affairs or Tax computations;any computations in respect thereof.
(cf) if If an Obligor makes any Tax Deduction, it shall pay the Bank has made full amount of that Tax Deduction to the relevant Tax authority within the time allowed for such payment under applicable law and shall deliver to Endo, as soon as reasonably practicable after such payment falls due to the applicable authority, any original receipt (or a payment to Newco pursuant to this Clause 12certified copy thereof) issued by such authority evidencing such payment.
Appears in 1 contract
Samples: Loan Agreement (Vernalis PLC)
Grossing-up. 12.9.1 Subject to Clause 12.9.2, all 15.11.1 All sums payable to the Bank pursuant to or in connection with any Financing Document under this Agreement shall be paid in full free and clear of all deductions deductions, withholdings, set-offs or withholdings counterclaims whatsoever except save only as may be required by law.
12.9.2 . If any deductions or withholdings are required by law, except in the case of
(i) interest payable under Clause 15.10;
(ii) the Purchase Price the payer shall be obliged to pay to the recipient such sum as will after such deduction or withholding is required by law in respect of any payment due from Newco to has been made leave the Bank pursuant to or in connection with any Financing Document, Newco shall:
(a) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation or other authority in accordance recipient with the applicable law;
(c) increase the payment in respect of which the deduction or withholding is required so that the net same amount received by the Bank after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) shall be equal to the amount which the Bank it would have been entitled to receive in the absence of any such requirement to make any a deduction or withholding, provided that if the recipient shall have transferred (for the avoidance of doubt, by whatever means, including by way of a declaration of trust or anything that amounts in substance to a transfer) the benefit in whole or in part of this Agreement or shall have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated or any affiliate or person with an interest in the recipient shall have transferred its rights under this Agreement or its interest in the recipient or changed its tax residence or the permanent establishment to which its rights under this Agreement or its interest in the recipient are allocated then the liability of the payer under this Clause 15.11.1 shall be limited to that (if any) which it would have been had no such transfer or change taken place.
15.11.2 If, and to the extent that, any relevant Tax Authority notifies any party that it considers that any amount (including, for these purposes, where such amount is nil) deducted or withheld from a payment under this Agreement is less than the amount required by law:
(i) the parties shall co-operate in order to ensure that the correct amount is accounted for to the relevant Tax Authority including recipient providing any required document (such as a certificate of residency) to enable the appropriate rate to be applied; and
(da) promptly deliver where, had the correct amount been deducted or procure withheld, the delivery payer would not, pursuant to Clause 15.11.1, have been obliged to increase the amount of the payment to the Bank recipient as a result of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco shall not be required to pay an additional amount under this Clause 12.9 if the payment in respect of which the deduction or withholding is required is a payment of interest on an Advance and:
(a) at the time that Advance was madewithholding, the Bank was not a Qualifying Bank otherwise than recipient shall indemnify the payer and the payer’s group against any Losses suffered as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if that Advance had been made by a Qualifying Bank)result thereof; orand
(b) at the time when the interest is paidin all other cases, the Bank is not beneficially entitled to it or, being beneficially entitled to it, payer shall indemnify the Bank is not within recipient and the charge to United Kingdom corporation tax as respects it otherwise than recipient’s group against any Losses suffered as a consequence result thereof, except, in each case, in respect of a Change occurring after any interest and penalties to the date extent that such interest and penalties are attributable to an unreasonable delay or default by the indemnified party or its group.
15.11.3 The recipient or expected recipient of an amount paid under this Agreement or any affiliate of or person with an interest in such recipient shall use its reasonable efforts to timely claim from the appropriate Tax Authority any exemption, rate reduction, refund, credit or similar benefit (and the obligation including pursuant to deduct or withhold would not have arisen if the Bank had been beneficially any relevant double tax treaty) to which it is entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it).
12.9.4 If the Bank determines, in its absolute discretion, that it has received, realised, utilised and retained a Tax benefit by reason respect of any deduction or withholding in respect of which Newco a payment has been made an increased or would otherwise be required to be made pursuant to Clause 15.11.1 and, for such purposes, shall, within any applicable time limits, submit any claims, notices, returns or applications and send a copy thereof to the payer.
15.11.4 If the recipient of a payment made under this Clause 12.9. the Bank shall, provided that it has received all amounts which are then due and Agreement or any affiliate of or person with an interest in such recipient receives a credit for or refund of any Taxation payable by the obligors under it or similar benefit by reason of any Financing Document, pay to Newco (deduction or withholding for or on account of Taxation then it shall reimburse to the extent that payer such part of such additional amounts paid to it pursuant to Clause 15.11.1 above as the Bank can do so without prejudicing the amount recipient of the benefit or repayment and payment certifies to the right of the Bank to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the Bank, in its absolute discretion shall determine, payer will leave the Bank it together with any affiliate of or person with an interest it (after such reimbursement) in no better and no worse position than it would have been in if the deduction or withholding payer had not been requiredrequired to make such deduction or withholding.
15.11.5 Where any payment is made under this Agreement pursuant to an indemnity, provided compensation or reimbursement provision and that sum is subject to a charge to Taxation in the hands of the recipient (or any affiliate of or person with an interest in such recipient) then the sum payable shall be increased to such sum as will ensure that:
(ai) after payment of such Taxation; and
(ii) after giving credit for any tax relief available to the recipient (or any Affiliate of or person with an interest in such recipient) in respect of the matter giving rise to the payment, the recipient shall be left with a sum equal to the sum that it would have received in the absence of such a charge to Taxation provided that if the recipient shall have transferred (for the avoidance of doubt, by whatever means, including by way of a declaration of trust or anything that amounts in substance to a transfer) the Bank benefit in whole or in part of this Agreement or shall have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated (or any affiliate of or person with an absolute discretion as interest in the recipient shall have transferred its rights under this Agreement or its interest in the recipient or changed its tax residence or the permanent establishment to which its rights under this agreement or its interest in the time at which and recipient are allocated) then the order and manner in liability of the payer under this Clause 15.11.5 shall be limited to that (if any) which it realises would have been had no such transfer or utilizes any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(b) the Bank shall not be obliged to disclose any information regarding its business Tax affairs or Tax computations;
(c) if the Bank has made a payment to Newco pursuant to this Clause 12change taken place.
Appears in 1 contract
Grossing-up. 12.9.1 10.9.1. Subject to Clause 12.9.210.9.2, all sums payable to the Bank pursuant to or in connection with any Financing Document shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law.
12.9.2 10.9.2. If any deduction or withholding is required by law in respect of any payment due from Newco the Borrower to the Bank pursuant to or in connection with any Financing Document, Newco Document the Borrower shall:
(a) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation or other authority in accordance with the applicable law;
(c) increase the payment in respect of which the deduction or withholding is required so that the net next amount received by the Bank after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) shall be equal to the amount which the Bank would have been entitled to receive in the absence of any requirement to make any deduction or withholding; and
(d) promptly deliver or procure the delivery to the Bank of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco 10.9.3. The Borrower shall not be required to pay an additional amount under this Clause 12.9 10.9 if the payment in respect of which the deduction or withholding is required is a payment of interest on an Advance and:
(a) at the time that Advance was made, the Bank was not a Qualifying Bank otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it).
12.9.4 10.9.4. If the Bank determines, in its absolute discretion, that it has received, realised, utilised and retained a Tax benefit by reason of any deduction or withholding in respect of which Newco the Borrower has made an increased payment under this Clause 12.9. 10.9, the Bank shall, provided that it has received all amounts which are then due and payable by the obligors under any Financing Document, pay to Newco the Borrower (to the extent that the Bank can do so without prejudicing the amount of the benefit or repayment and the right of the Bank to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the Bank, in its absolute discretion shall determine, will leave the Bank in no worse position than it would have been in if the deduction or withholding had not been be required, provided that:
(a) the Bank shall have an absolute discretion as to the time at which and the order and manner in which it realises or utilizes utilises any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(b) the Bank shall not be obliged to disclose any information regarding its business business, Tax affairs or Tax computations;
(c) if If the Bank has made a payment to Newco the Borrower pursuant to this Clause 1210.9.4 on account of any Tax benefit and its subsequently transpires that the Bank did not receive that Tax benefit, or received a lesser Tax benefit, the Borrower shall, on demand, pay to the Bank such sum as the Bank may determine as being necessary to restore its after-tax position to that which it would have been had no adjustment under this Clause 10.
Appears in 1 contract
Grossing-up. 12.9.1 9.8.1 Subject to Clause 12.9.29.8.2, all sums payable to the Bank LND pursuant to or in connection with any Financing Discounting Document shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law.
12.9.2 9.8.2 If any deduction or withholding is required by law in respect of any payment due from Newco a Client or a Customer to the Bank LND pursuant to or in connection with any Financing Discounting Document, Newco each Client shall:
(a) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation or other authority in accordance with the applicable law;
(c) increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank LND after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) shall be equal to the amount which the Bank LND would have been entitled to receive in the absence of any requirement to make any deduction or withholding; and
(d) promptly deliver or procure the delivery to the Bank LND of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco shall not be required to pay an additional amount under this Clause 12.9 if the payment in respect of which the deduction or withholding is required is a payment of interest on an Advance and:
(a) at the time that Advance was made, the Bank was not a Qualifying Bank otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it).
12.9.4 9.8.3 If the Bank LND determines, in its absolute discretion, that it has received, realised, utilised and retained a Tax benefit by reason of any deduction or withholding in respect of which Newco a Client has made an increased payment under this Clause 12.9. the Bank 9.8, LND shall, provided that it has received all amounts which are then due and payable by the obligors under any Financing Discounting Document, pay to Newco that Client (to the extent that the Bank LND can do so without prejudicing the amount of the benefit or repayment and the right of the Bank LND to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the BankLND, in its absolute discretion shall determine, will leave the Bank LND in no worse position than it would have been in if the deduction or withholding had not been required, provided that:
(a) the Bank LND shall have an absolute discretion as to the time at which and the order and manner in which it realises or utilizes utilises any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(b) the Bank LND shall not be obliged to disclose any information regarding its business business, Tax affairs or Tax computations;; and
(c) if the Bank LND has made a payment to Newco a Client pursuant to this Clause 129.8.4 on account of any Tax benefit and it subsequently transpires that LND did not receive that Tax benefit, or received a lesser Tax benefit, that Client shall, on demand, pay to LND such sum as LND may determine as being necessary to restore its after-tax position other than corporation tax and any similar tax to that which it would have been had no adjustment under this Clause 9.
Appears in 1 contract
Grossing-up. 12.9.1 Subject to Clause 12.9.2, all 11.1 All sums payable by the Warrantor to the Bank pursuant to or in connection with any Financing Document Buyer under this Tax Covenant shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law.
12.9.2 If any unless the deduction or withholding is required by law. If any deductions or withholdings are required by law in respect to be made from any of any payment due from Newco the sums payable under this Tax Covenant, the Warrantor shall pay to the Bank pursuant to or in connection with any Financing DocumentBuyer such sum as will, Newco shall:
(a) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation or other authority in accordance with the applicable law;
(c) increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made has been made, leave the Buyer with the same amount as a consequence of the increase) shall be equal to the amount which the Bank it would have been entitled to receive in the absence of any such requirement to make any a deduction or withholding; and
(d) promptly deliver or procure the delivery to the Bank of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco shall not be required to pay an additional amount 11.2 If the Buyer incurs a taxation liability which results from, or is calculated by reference to, any sum paid under this Clause 12.9 if the payment Tax Covenant (other than in respect of which any interest paid pursuant to paragraph 3.3), the deduction or withholding is required is a amount so payable shall be increased by such amount as will ensure that, after payment of interest on an Advance and:
(a) at the time that Advance was madetaxation liability, the Bank was not Buyer is left with a Qualifying Bank otherwise than as a consequence net sum equal to the sum it would have received had no such taxation liability arisen.
11.3 If the Buyer would, but for the availability of a Change occurring after Buyer’s Relief, incur a taxation liability falling within paragraph 11.2 (other than in respect of any interest paid pursuant to paragraph 3.3), it shall be deemed for the date purposes of this Agreement (that paragraph to have incurred and paid that liability.
11.4 If the obligation to deduct or withhold would not have arisen if that Advance had been made by Buyer, a Qualifying Bank); or
(b) at the time when the interest is paidSubsidiary, the Bank is not beneficially entitled to it or, being beneficially entitled to it, Company or any member of the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it).
12.9.4 If the Bank determines, in its absolute discretion, that it has received, realised, utilised and retained Buyer’s Tax Group receives a Tax benefit by reason of any deduction or withholding in respect of which Newco the Warrantor has made an increased a payment under this Clause 12.9. paragraph 11 the Bank shall, provided that it has received all amounts which are then due and payable by the obligors under any Financing Document, Buyer shall pay to Newco (to the extent that the Bank can do so without prejudicing the Warrantor such amount of the benefit or repayment and the right of the Bank to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the Bank, in its absolute discretion shall determine, will leave the Bank Buyer, the Company, the Subsidiary or the relevant company in no worse the Buyer’s Tax Group in the same position than it would have been in if the deduction or withholding had not been required.
11.5 If the Buyer assigns the benefit of this Tax Covenant or this agreement, provided that:
(a) the Bank Warrantor shall have an absolute discretion as not be liable pursuant to paragraph 11.1 or paragraph 11.2, save to the time at which and extent that the order and manner in which it realises or utilizes any Tax benefit and Warrantor would have been so liable had no such assignment occurred.
11.6 The Warrantor shall not be obliged to arrange its business pay any additional amount under paragraph 11.1 or its 11.2 in respect of any deduction or withholding or any Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(b) the Bank shall not be obliged to disclose any information regarding its business Tax affairs or Tax computations;
(c) if the Bank has made a payment to Newco pursuant to this Clause 12Buyer is not resident in the United Kingdom for Tax purposes.
Appears in 1 contract
Grossing-up. 12.9.1 19.9.1 Subject to Clause 12.9.219.9.2, all sums payable to the Bank a Finance Party pursuant to or in connection with any Financing Finance Document shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law.
12.9.2 19.9.2 If any deduction or withholding is required by law in respect of any payment due from Newco an Obligor to the Bank a Finance Party pursuant to or in connection with any Financing Finance Document, Newco that Obligor shall:
(a) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation authority or other authority in accordance with the applicable law;; #3462336/1 60 (85)
(c) increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank payee (which expression when used in this Clause 19.9.2 shall mean each Finance Party) after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) shall be equal to the amount which the Bank payee would have been entitled to receive in the absence of any requirement to make any deduction or withholding; and
(d) promptly deliver or procure the delivery to the Bank relative payee of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco shall not be required 19.9.3 If the Facility Agent is obliged to pay an additional amount under this Clause 12.9 if the payment in respect of which the make any deduction or withholding from any payment to any Lender (an “Agency Payment”) which represents an amount or amounts received by that Agent from an Obligor under any Finance Document, that Obligor shall pay directly to that Lender such sum (an “Agency Compensating Sum”) as shall, after taking into account any deduction or withholding which that Obligor is required is a obliged to make from the Agency Compensating Sum, enable that Lender to receive, on the due date for payment of interest on the Agency Payment, an Advance and:
(a) at amount equal to the time Agency Payment which that Advance was made, Lender would have received in the Bank was not a Qualifying Bank otherwise than as a consequence absence of a Change occurring after the date of this Agreement (and the any obligation to deduct make any deduction or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it)withholding.
12.9.4 19.9.4 If the Bank determines, in its absolute discretion, any Lender determines that it has received, realised, utilised and retained a Tax benefit by reason of any deduction or withholding in respect of which Newco an Obligor has made an increased payment or paid an Agency Compensating Sum under this Clause 12.9. the Bank 19.9, that Lender shall, provided that it has each Finance Party have received all amounts which are then due and payable by the obligors Obligors under any Financing Finance Document, pay to Newco that Obligor (to the extent that the Bank that Lender can do so without prejudicing the amount of the benefit or repayment and the right of the Bank that Lender to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the Bank, in its absolute discretion shall determine, that will leave the Bank that Lender in no worse position than it would have been in if the deduction or withholding had not been required, provided that:
(a) the Bank each Lender shall have an absolute discretion as to the time at which and the order and manner in which it realises or utilizes utilises any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(b) the Bank no Lender shall not be obliged to disclose any information regarding its business business, Tax affairs or Tax computations;
(c) if the Bank a Lender has made a payment to Newco an Obligor pursuant to this Clause 1219.9.4 on account of any Tax benefit and it subsequently transpires that that Lender did not receive that Tax benefit, or received a lesser Tax benefit, that Obligor shall, on demand, pay to that Lender such sum as that Lender may determine as being necessary to restore its after-tax position to that which it would have been had no adjustment under this Clause 19.9.4 been made.
19.9.5 No Lender shall be obliged to make any payment under Clause 19.9.4 if, by doing so, it would contravene the terms of any applicable law or any notice, direction or requirement of any governmental or regulatory authority (whether or not having the force of law).
19.9.6 If an Obligor is required to make an increased payment for the account of a Lender under Clause 19.9.2, then, without prejudice to that obligation and so long as such requirement exists and subject to the Borrowers giving the Facility Agent and that Lender not less than ten (10) days’ prior notice (which shall be irrevocable), the Obligors may prepay all, but not part, of that Lender’s Participation in the Loans together with accrued interest on the amount prepaid. Any such prepayment shall be subject to Clause 24.1 (Breakage costs indemnity). On any such prepayment, the Commitment of the relevant Lender shall be automatically cancelled.
Appears in 1 contract
Samples: Multicurrency Revolving Credit Facility Agreement (Pra Group Inc)
Grossing-up. 12.9.1 10.9.1 Subject to Clause 12.9.210.9.2, all sums payable to the Bank any Finance Party pursuant to or in connection with any Financing Document shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law.
12.9.2 10.9.2 If any deduction or withholding is required by law in respect of any payment due from Newco an Obligor to the Bank any Finance Party pursuant to or in connection with any Financing Document, Newco Document that Obligor shall:
(a) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation or other authority in accordance with the applicable law;
(c) increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank payee (which expression when used in this Clause 10.9.2 shall mean any Finance Party) after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) shall be equal to the amount which the Bank payee would have been entitled to receive in the absence of any requirement to make any deduction or withholding; and
(d) upon request by any payee, promptly deliver or procure the delivery to the Bank relative payee of receipts reasonably evidencing each deduction or withholding which has been made.
12.9.3 Newco shall not be required to pay an additional amount under this Clause 12.9 if the payment in respect of which the deduction or withholding is required is a payment of interest on an Advance and:
(a) at the time that Advance was made, the Bank was not a Qualifying Bank otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it).
12.9.4 10.9.3 If the Bank determines, in its absolute discretion, that it has received, realised, utilised and retained a Tax benefit by reason of Agent is obliged to make any deduction or withholding in respect of from any payment to any Bank (an "Agency Payment") which Newco has made represents an increased payment under this Clause 12.9. the Bank shall, provided that it has amount or amounts received all amounts which are then due and payable by the obligors Agent from an Obligor under any Financing Document, that Obligor shall, after being notified by the relevant Bank of its intention to make a claim under this Clause 10.9.3, pay directly to Newco that Bank such sum (to the extent that the Bank can do so without prejudicing the amount of the benefit or repayment and the right of the Bank to obtain an "Agency Compensating Sum") as shall, after taking into account any other benefit, relief or allowance which may be available to it) such amount, if any, as the Bank, in its absolute discretion shall determine, will leave the Bank in no worse position than it would have been in if the deduction or withholding had not been requiredwhich the Borrower is obliged to make from the Agency Compensating Sum, provided that:
(a) enable that Bank to receive, on the Bank shall have due date for payment of the Agency Payment, an absolute discretion as amount equal to the time at Agency Payment which and that Bank would have received in the order and manner in which it realises absence of any obligation to make any deduction or utilizes any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(b) the Bank shall not be obliged to disclose any information regarding its business Tax affairs or Tax computations;
(c) if the Bank has made a payment to Newco pursuant to this Clause 12withholding.
Appears in 1 contract
Samples: Credit Agreement (CNH Global N V)
Grossing-up. 12.9.1 10.9.1 Subject to Clause 12.9.210.9.2, all sums payable to the Agent or any Bank pursuant to or in connection with any Financing Document shall be paid in full free and clear of all deductions or withholdings whatsoever except save only as may be required by law.
12.9.2 10.9.2 If any deduction or withholding is required by law in respect of any payment due from Newco the Borrower or the Guarantor to the Agent or any Bank pursuant to or in connection with any Financing DocumentDocument the Borrower or, Newco as the case may be, the Guarantor shall:
(a) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation or other authority in accordance with the applicable law;
(c) increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank payee (which expression when used in this Clause 10.9.2 shall mean the Agent or any Bank) after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) shall be equal to the amount which the Bank payee would have been entitled to receive in the absence of any requirement to make any deduction or withholding; and
(d) promptly deliver or procure the delivery to the Bank relative payee of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco 10.9.3 If the Agent is obliged to make any deduction or withholding from any payment to any Bank (an "agency payment") which represents an amount or amounts received by the Agent from any obligor under any Financing Document, the Borrower shall pay directly to that Bank such sum (an "agency compensating sum") as will, after taking into account any deduction or withholding which the Borrower is obliged to make from the agency compensating sum, enable that Bank to receive, on the due date for payment of the agency payment, an amount equal to the agency payment which that Bank would have received in the absence of any obligation to make any deduction or withholding.
10.9.4 Subject to Clause 10.9.5, the Borrower shall not be required to pay an additional amount under this Clause 12.9 10.9 if the payment in respect of which the deduction or withholding is required is a payment of interest on a Participation in an Advance and:
(a) at the time that Advance Participation was made, the Bank making that Participation was not a Qualifying Bank otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if that Advance Participation had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank for whose account it is paid is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it).
12.9.4 If the 10.9.5 The Borrower shall be required to pay an additional amount to a Bank determines, in its absolute discretion, that it has received, realised, utilised and retained a Tax benefit by reason of any deduction or withholding in respect of which Newco has made an increased payment who would otherwise not be obliged to such additional amount under this Clause 12.9. 10.9 because of the provisions of Clause 10.9.4 (a "Convention Bank") PROVIDED THAT the representations and warranties specified in Clause 10.9.6 are true and correct and the undertakings specified in Clause 10.9.6 are complied with by such Convention Bank.
10.9.6 Each Convention Bank shallrepresents, provided that it has received all amounts which are then due warrants and payable by the obligors under any Financing Document, pay to Newco (undertakes to the extent that the Bank can do so without prejudicing the amount of the benefit or repayment and the right of the Bank to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the Bank, in its absolute discretion shall determine, will leave the Bank in no worse position than it would have been in if the deduction or withholding had not been required, provided Borrower that:
(a) the Bank shall have an absolute discretion it is acting as principal in relation to the time at which this Agreement and the order and manner in which it realises or utilizes any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible as agent for any credit or refund or similar benefitparty;
(b) for the Bank shall purposes of Article II of the Convention between the United Kingdom and the United States of America dated 31st December 1975 as amended (S.I.1980/586) (the "Convention"):
(i) it is a resident of the United States (as defined in Article 4 of the Convention);
(ii) it does not be obliged carry on business in the United Kingdom through a permanent establishment (as defined in Article 5 of the Convention) situated in the United Kingdom;
(iii) it does not perform in the United Kingdom independent personal services from a fixed base situated in the United Kingdom;
(iv) it is not exempt from Tax on interest on Advances in the United States; and
(v) subject as provided in this Clause 10.9.6, it will, except as a result of any event beyond its control, continue to disclose any information regarding its business Tax affairs or Tax computations;comply with items (i), (ii) and (iv) above; and
(c) if it shall at the request of the Borrower promptly use all reasonable endeavours to assist the Borrower in making such claims and obtaining such consents as may be necessary or advisable under the Convention or otherwise to enable the Borrower to pay interest to such Convention Bank has on the Advances made a payment by it without any withholding or deduction for or on account of Tax. Each Convention Bank shall be entitled at any time to Newco pursuant represent, warrant and undertake to the Borrower, in form and manner approved by the Borrower (such approval not to be unreasonably withheld or delayed), to the same effect, mutatis mutandis, as is represented by the Banks (other than the Convention Banks) in Clause 10.9.4, and upon the coming into full force and effect of such representation, warranty and undertaking the representations, warranties and undertakings contained in this Clause 1210.9.6 shall cease to apply (without prejudice to any right or claim which the Borrower may have in respect of any previous breach of the provisions of this Clause 19.9.6)
10.9.7 If the Borrower or the Guarantor is required to make an increased payment for the account of a Bank under Clause 10.9.2, then, without prejudice to that obligation and so long as such requirement exists and subject to the Borrower giving the Agent and that Bank not less than 10 days' prior notice (which shall be irrevocable), the Borrower may prepay all, but not part, of that Bank's Participation in the Loan together with accrued interest on the amount prepaid. Any such prepayment shall be subject to Clause 22.
1. On any such prepayment the Commitment of the relevant Bank shall be automatically cancelled.
Appears in 1 contract
Grossing-up. 12.9.1 11.8.1 Subject to Clause 12.9.211.8.2, all sums payable to the Bank pursuant to or in connection with any Financing Document shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law.
12.9.2 11.8.2 If any deduction or withholding is required by law in respect of any payment due from Newco the Borrower to the Bank pursuant to or in connection with any Financing Document, Newco the Borrower shall:
(a) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation or other authority in accordance with the applicable law;
(c) increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank payee (which expression when used in this Clause 11.8.2 shall mean the Bank) after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) shall be equal to the amount which the Bank payee would have been entitled to receive in the absence of any requirement to make any deduction or withholding; and
(d) promptly deliver or procure the delivery to the Bank relative payee of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco 11.8.3 The Borrower shall not be required to pay an additional amount under this Clause 12.9 11.8 if the payment in respect of which the deduction or withholding is required is a payment of interest on an Advance and:
(a) at the time that Advance was made, the Bank was not a Qualifying Bank otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it).
12.9.4 11.8.4 If the Bank determines, in its absolute discretion, that it has received, realised, utilised and retained a Tax benefit by reason of any deduction or withholding in respect of which Newco the Borrower has made an increased payment under this Clause 12.9. 11.8, the Bank shall, provided that it has received all amounts which are then due and payable by the obligors under any Financing Document, shall pay to Newco the Borrower (to the extent that the that Bank can do so without prejudicing the amount of the benefit or repayment and the right of the Bank to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the Bank, in its absolute discretion shall determine, will leave the Bank in no worse position than it would have been in if the deduction or withholding had not been required, provided that:
(a) the Bank shall have an absolute discretion as to the time at which and the order and manner in which it realises or utilizes utilises any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(b) the Bank shall not be obliged to disclose any information regarding its business business, Tax affairs or Tax computations;
(c) if the Bank has made a payment to Newco the Borrower pursuant to this Clause 1211.8.4 on account of any Tax benefit and it subsequently transpires that the Bank did not receive that Tax benefit, or received a lesser Tax benefit, the Borrower shall, on demand, pay to the Bank such sum as the Bank may determine as being necessary to restore its after-tax position to that which it would have been had no adjustment under this Clause 11.
Appears in 1 contract
Samples: Credit Agreement (Cott Corp /Cn/)
Grossing-up. 12.9.1 Subject to Clause 12.9.2, all 11.1 All sums payable by the Seller to the Bank pursuant to or in connection with any Financing Document Buyer under this Tax Covenant shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law.
12.9.2 If any in respect of Taxation unless the deduction or withholding is required by law. If any deductions or withholdings are required by law in respect to be made from any of any payment due from Newco the sums payable under this Tax Covenant, the Seller shall pay to the Bank pursuant to or in connection with any Financing DocumentBuyer such sum as will, Newco shall:
(a) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation or other authority in accordance with the applicable law;
(c) increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made has been made, leave the Buyer with the same amount as a consequence of the increase) shall be equal to the amount which the Bank it would have been entitled to receive in the absence of any such requirement to make any a deduction or withholding; and.
(d) promptly deliver 11.2 If the Buyer incurs a Taxation liability which results from, or procure is calculated by reference to, any sum paid under this Tax Covenant, the delivery amount so payable shall be increased by such amount as will ensure that, after payment of the Taxation liability, the Buyer is left with a net sum equal to the Bank sum it would have received had no such taxation liability arisen.
11.3 If the Buyer would, but for the availability of receipts evidencing each a Buyer´s Relief, incur a Taxation liability falling within paragraph 11.2, it shall be deemed for the purposes of that paragraph to have incurred and paid that liability
11.4 If the Seller pays an additional amount in accordance with paragraph 11.1 or 11.2, the Buyer shall reimburse the Seller such amount as the Buyer shall (acting in good faith) determine as leaving the Buyer in the same position as the Buyer would have been in had no such additional Tax been paid or deduction or withholding which has been made.
12.9.3 Newco shall not be required to pay an additional amount under this Clause 12.9 if the payment in respect of which the deduction or withholding is required is a payment of interest on an Advance and:
(a) at the time that Advance was made, the Bank was not a Qualifying Bank otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it).
12.9.4 If the Bank determines, in its absolute discretion, that it has received, realised, utilised and retained a Tax benefit by reason of any deduction or withholding in respect of which Newco has made an increased payment under this Clause 12.9. the Bank shall, provided that it has received all amounts which are then due and payable by the obligors under any Financing Document, pay to Newco (but only to the extent that the Bank Buyer can do so without prejudicing the amount retention of any credit or relief obtained as a result of the relevant deduction or withholding or additional Tax
11.5 If the Buyer assigns the benefit of this Tax Covenant or repayment and this agreement, the right of Seller shall not be liable pursuant to paragraph 11.1 or paragraph 11.2, save to the Bank to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as extent that the Bank, in its absolute discretion shall determine, will leave the Bank in no worse position than it Seller would have been in if the deduction or withholding so liable had not been required, provided that:
(a) the Bank shall have an absolute discretion as to the time at which and the order and manner in which it realises or utilizes any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(b) the Bank shall not be obliged to disclose any information regarding its business Tax affairs or Tax computations;
(c) if the Bank has made a payment to Newco pursuant to this Clause 12no such assignment occurred.
Appears in 1 contract
Grossing-up. 12.9.1 19.9.1 Subject to Clause 12.9.219.9.2, all sums payable to the Bank a Finance Party pursuant to or in connection with any Financing Finance Document shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law.
12.9.2 19.9.2 If any deduction or withholding is required by law in respect of any payment due from Newco an Obligor to the Bank a Finance Party pursuant to or in connection with any Financing Finance Document, Newco that Obligor shall:
(a) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation authority or other authority in accordance with the applicable law;
(c) increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank payee (which expression when used in this Clause 19.9.2 shall mean each Finance Party) after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) shall be equal to the amount which the Bank payee would have been entitled to receive in the absence of any requirement to make any deduction or withholding; and
(d) promptly deliver or procure the delivery to the Bank relative payee of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco shall not be required 19.9.3 If the Facility Agent is obliged to pay an additional amount under this Clause 12.9 if the payment in respect of which the make any deduction or withholding from any payment to any Lender (an “Agency Payment”) which represents an amount or amounts received by that Agent from an Obligor under any Finance Document, that Obligor shall pay directly to that Lender such sum (an “Agency Compensating Sum”) as shall, after taking into account any deduction or withholding which that Obligor is required is a obliged to make from the Agency Compensating Sum, enable that Lender to receive, on the due date for payment of interest on the Agency Payment, an Advance and:
(a) at amount equal to the time Agency Payment which that Advance was made, Lender would have received in the Bank was not a Qualifying Bank otherwise than as a consequence absence of a Change occurring after the date of this Agreement (and the any obligation to deduct make any deduction or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it)withholding.
12.9.4 19.9.4 If the Bank determines, in its absolute discretion, any Lender determines that it has received, realised, utilised and retained a Tax benefit by reason of any deduction or withholding in respect of which Newco an Obligor has made an increased payment or paid an Agency Compensating Sum under this Clause 12.9. the Bank 19.9, that Lender shall, provided that it has each Finance Party have received all amounts which are then due and payable by the obligors Obligors under any Financing Finance Document, pay to Newco that Obligor (to the extent that the Bank that Lender can do so without prejudicing the amount of the benefit or repayment and the right of the Bank that Lender to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the Bank, in its absolute discretion shall determine, that will leave the Bank that Lender in no worse position than it would have been in if the deduction or withholding had not been required, provided that:
(a) the Bank each Lender shall have an absolute discretion as to the time at which and the order and manner in which it realises or utilizes utilises any Tax benefit and shall not be obliged to #10394456/1 arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(b) the Bank no Lender shall not be obliged to disclose any information regarding its business business, Tax affairs or Tax computations;
(c) if the Bank a Lender has made a payment to Newco an Obligor pursuant to this Clause 1219.9.4 on account of any Tax benefit and it subsequently transpires that that Lender did not receive that Tax benefit, or received a lesser Tax benefit, that Obligor shall, on demand, pay to that Lender such sum as that Lender may determine as being necessary to restore its after-tax position to that which it would have been had no adjustment under this Clause 19.9.4 been made.
19.9.5 No Lender shall be obliged to make any payment under Clause 19.9.4 if, by doing so, it would contravene the terms of any applicable law or any notice, direction or requirement of any governmental or regulatory authority (whether or not having the force of law).
19.9.6 If an Obligor is required to make an increased payment for the account of a Lender under Clause 19.9.2, then, without prejudice to that obligation and so long as such requirement exists and subject to the Borrowers giving the Facility Agent and that Lender not less than ten (10) days’ prior notice (which shall be irrevocable), the Obligors may prepay all, but not part, of that Lender’s Participation in the Loan together with accrued interest on the amount prepaid. Any such prepayment shall be subject to Clause 24.1 (Breakage costs indemnity). On any such prepayment, the Commitment of the relevant Lender shall be automatically cancelled.
Appears in 1 contract
Samples: Multicurrency Revolving Credit Facility Agreement (Pra Group Inc)
Grossing-up. 12.9.1 Subject to Clause 12.9.2, all sums payable to If the Borrower or the Bank pursuant to or in connection with any Financing Document shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be is required by law.
12.9.2 If law to make any deduction or withholding on account of any such tax or other amount from any sum paid or payable by the Borrower to the Bank or if the Bank (or any person on its behalf other than the Borrower) is required by law to make any deduction or withholding from, (except on account of tax on the overall net income of the Bank) any payment on or calculated by reference to the amount of any sum received or receivable by the Bank:-
10.7.1 the Borrower shall notify the Bank of any such requirement or any change in any such requirement as soon as it becomes aware of it;
10.7.2 the Borrower shall pay any such tax or other amount before the date on which penalties attach thereto, such payment to be made (if the liability to pay is imposed on the Borrower) for its own account or (if that liability is imposed on any other party to this Agreement) on behalf of and in the name of the Bank;
10.7.3 the sum payable or to be paid by the Borrower to the Bank or for the Bank's account in respect of which the relevant deduction, withholding or payment is required shall be increased to the extent necessary to ensure that, after the making of that deduction, withholding or payment, the Bank receives on the due date and retains (free from any liability in respect of any payment due from Newco such deduction, withholding or payment) a net sum equal to what the Bank pursuant to would have received and/or retained had no such deduction, withholding or in connection with any Financing Document, Newco shall:payment been required or made;
(a) 10.7.4 the Borrower shall ensure or procure that the deduction amount so deducted or withholding is made and that it withheld does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount legally required to be so deducted or withheld to by the relevant Taxation or other authority in accordance with the applicable law;appropriate authorities; and
(c) increase the payment in respect of 10.7.5 not later than 14 days after paying any sum from which the deduction or withholding it is required so that the net amount received by the Bank after the deduction or withholding (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase) shall be equal to the amount which the Bank would have been entitled to receive in the absence of any requirement law to make any deduction or withholding; and
(d) promptly , and not later than 14 days after the due date of payment of any tax or other amount which it is required by Clause 10.7.2 to pay, the Borrower shall deliver or procure the delivery to the Bank satisfactory evidence of receipts evidencing each deduction such deduction, withholding or withholding which has been payment and of the remittance made to the relevant taxing or other authority and shall deliver to the Bank promptly after receipt from the relevant tax authorities an original or a certified true copy of the receipt issued by the tax authorities for any of the payments so made.
12.9.3 Newco shall not be required to pay an additional amount under this Clause 12.9 if the payment in respect of which the deduction or withholding is required is a payment of interest on an Advance and:
(a) at the time that Advance was made, the Bank was not a Qualifying Bank otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it).
12.9.4 If the Bank determines, in its absolute discretion, that it has received, realised, utilised and retained a Tax benefit by reason of any deduction or withholding in respect of which Newco has made an increased payment under this Clause 12.9. the Bank shall, provided that it has received all amounts which are then due and payable by the obligors under any Financing Document, pay to Newco (to the extent that the Bank can do so without prejudicing the amount of the benefit or repayment and the right of the Bank to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the Bank, in its absolute discretion shall determine, will leave the Bank in no worse position than it would have been in if the deduction or withholding had not been required, provided that:
(a) the Bank shall have an absolute discretion as to the time at which and the order and manner in which it realises or utilizes any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(b) the Bank shall not be obliged to disclose any information regarding its business Tax affairs or Tax computations;
(c) if the Bank has made a payment to Newco pursuant to this Clause 12.
Appears in 1 contract
Samples: Facilities Agreement
Grossing-up. 12.9.1 Subject to Clause 12.9.2, all sums payable to 6.7.1 If at any time the Bank pursuant to or in connection with any Financing Document shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law.
12.9.2 If any deduction or withholding is required by law in respect of any payment due from Newco to the Bank pursuant to or in connection with any Financing Document, Newco shall:
(a) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation or other authority in accordance with the applicable law;
(c) increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank after the deduction or withholding (and after taking account of any further deduction or withholding which Borrower is required to be made as a consequence of the increase) shall be equal to the amount which the Bank would have been entitled to receive in the absence of any requirement to make any deduction or withholding; and
(d) promptly deliver or procure the delivery to the Bank of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco shall not be required to pay an additional amount under this Clause 12.9 if the payment in respect of which the deduction or withholding is required is a payment of interest on an Advance and:
(a) at the time that Advance was made, the Bank was not a Qualifying Bank otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it).
12.9.4 If the Bank determines, in its absolute discretion, that it has received, realised, utilised and retained a Tax benefit by reason of any deduction or withholding in respect of Taxes from any amount payable to any Facility Beneficiary (or if the Facility Agent or the Security Trustee is required to make any such deduction or withholding from any amount payable to any other Facility Beneficiary), the amount payable by the Borrower shall be increased to the extent necessary to ensure that, after the making of that deduction or withholding, that Facility Beneficiary receives on the due date for payment of that amount (and retains, free from any liability in respect of that deduction or withholding) a net amount equal to the amount which Newco has made it would have received had no such deduction or withholding been required to be made. The Borrower shall within thirty (30) days of making such payment deliver to the relevant Facility Beneficiary all receipts, certificates and other proof evidencing the amounts (if any) paid or payable in respect of any deduction or withholding as aforesaid.
6.7.2 The Borrower shall not be required to make an increased payment to any Facility Beneficiary under this Clause 12.9. the Bank shall, provided that it has received all amounts which are then due and payable by the obligors under any Financing Document, pay to Newco (to the extent that the Bank can do so without prejudicing the amount of the benefit or repayment and the right of the Bank to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the Bank, in its absolute discretion shall determine, will leave the Bank in no worse position than it would have been in if the clause 6.7.1 for a deduction or withholding had not been requiredin respect of Tax imposed by the United Kingdom from a payment of interest under any Transaction Document, provided thatif on the date on which the payment falls due:
(a) the Bank shall payment could have an absolute discretion as been made to the time at which and the order and manner in which relevant Facility Beneficiary without any deduction or withholding if it realises was a Qualifying Beneficiary, but on that date that Facility Beneficiary is not or utilizes any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order has ceased to be eligible for a Qualifying Beneficiary other than as a result of any credit change after the date it became a Facility Beneficiary under this Agreement in (or refund in the interpretation, administration, or similar benefit;application of) any Applicable Law, or any published practice or concession of any relevant taxing authority; or
(b) the Bank relevant Facility Beneficiary is a Treaty Beneficiary and the Borrower is able to demonstrate that the payment could have been made to the Facility Beneficiary without any deduction or withholding had that Facility Beneficiary complied with its obligations under clause 6.7.4.
6.7.3 Any Facility Beneficiary who becomes aware that the Borrower must make a deduction or withholding (or that there is a change in the rate or basis of any deduction or withholding) on any payment payable to it shall not be obliged to disclose promptly notify the Facility Agent. If the Facility Agent receives any information regarding its business Tax affairs or Tax computations;
(c) if such notice, it shall promptly notify the Bank has made a payment to Newco pursuant to this Clause 12Borrower.
Appears in 1 contract
Samples: Multicurrency Revolving Credit and Guarantee Facility Agreement (Stolt Offshore S A)
Grossing-up. 12.9.1 Subject to Clause 12.9.2, all sums payable to the Bank pursuant to or in connection with 6.7.1 If at any Financing Document shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law.
12.9.2 If time any deduction or withholding is required by law in respect of any payment due from Newco to the Bank pursuant to or in connection with any Financing Document, Newco shall:
(a) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation or other authority in accordance with the applicable law;
(c) increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank after the deduction or withholding (and after taking account of any further deduction or withholding which Borrower is required to be made as a consequence of the increase) shall be equal to the amount which the Bank would have been entitled to receive in the absence of any requirement to make any deduction or withholding; and
(d) promptly deliver or procure the delivery to the Bank of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco shall not be required to pay an additional amount under this Clause 12.9 if the payment in respect of which the deduction or withholding is required is a payment of interest on an Advance and:
(a) at the time that Advance was made, the Bank was not a Qualifying Bank otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it).
12.9.4 If the Bank determines, in its absolute discretion, that it has received, realised, utilised and retained a Tax benefit by reason of any deduction or withholding in respect of Taxes from any amount payable to any Facility Beneficiary (or if the Facility Agent or the Security Trustee is required to make any such deduction or withholding from any amount payable to any other Facility Beneficiary), the amount payable by that Borrower shall be increased to the extent necessary to ensure that, after the making of that deduction or withholding, that Facility Beneficiary receives on the due date for payment of that amount (and retains, free from any liability in respect of that deduction or withholding) a net amount equal to the amount which Newco has it would have received had no such deduction or withholding been required to be made an and the Borrowers shall indemnify that Facility Beneficiary, on demand by that Facility Beneficiary, against all Losses suffered, incurred or paid by it by reason of any failure of that Borrower to make any such deduction or withholding or by reason of any increased amount not being paid on the due date. Each Borrower shall promptly deliver to the relevant Facility Beneficiary all receipts, certificates and other proof evidencing the amounts (if any) paid or payable in respect of any deduction or withholding as aforesaid.
6.7.2 No Borrower shall be required to make any increased payment under this Clause 12.9. clause 6.7.1 if, on the Bank shall, provided that it has received all amounts date on which are then due and payable by the obligors under any Financing Document, pay to Newco (to the extent that the Bank can do so without prejudicing the amount of from which the benefit or repayment and the right of the Bank to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the Bank, in its absolute discretion shall determine, will leave the Bank in no worse position than it would have been in if the relevant deduction or withholding had not was made fell due, the payment could have been required, provided that:
(a) the Bank shall have an absolute discretion as made to the time at relevant Facility Beneficiary without a deduction or withholding if it was a Qualifying Bank, but on that date that Facility Beneficiary is not, or has ceased to be, a Qualifying Bank, other than as a result of any change after the date it became a Facility Beneficiary under this Agreement in (or in the interpretation, administration or application of) any law or any published practice or concession of any relevant taxing authority.
6.7.3 A Facility Beneficiary making or intending to make a claim under clause 6.7.1 shall promptly notify the Facility Agent of the event which and will give, or has given, rise to the order and manner in claim, following which it realises or utilizes any Tax benefit and the Facility Agent shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(b) notify the Bank shall not be obliged to disclose any information regarding its business Tax affairs or Tax computations;
(c) if the Bank has made a payment to Newco pursuant to this Clause 12Bluewater Agent.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Aurelia Energy N V)
Grossing-up. 12.9.1 Subject to Clause 12.9.2, all sums payable to the Bank pursuant to or in connection with 11.1.1 If at any Financing Document shall be paid in full free and clear of all deductions or withholdings whatsoever except only as may be required by law.
12.9.2 If time any deduction or withholding is required by law in respect of any payment due from Newco to the Bank pursuant to or in connection with any Financing Document, Newco shall:
(a) ensure or procure that the deduction or withholding is made and that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or withheld to the relevant Taxation or other authority in accordance with the applicable law;
(c) increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank after the deduction or withholding (and after taking account of any further deduction or withholding which Guarantor is required to be made as a consequence of the increase) shall be equal to the amount which the Bank would have been entitled to receive in the absence of any requirement to make any deduction or withholding; and
(d) promptly deliver or procure the delivery to the Bank of receipts evidencing each deduction or withholding which has been made.
12.9.3 Newco shall not be required to pay an additional amount under this Clause 12.9 if the payment in respect of which the deduction or withholding is required is a payment of interest on an Advance and:
(a) at the time that Advance was made, the Bank was not a Qualifying Bank otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if that Advance had been made by a Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not beneficially entitled to it or, being beneficially entitled to it, the Bank is not within the charge to United Kingdom corporation tax as respects it otherwise than as a consequence of a Change occurring after the date of this Agreement (and the obligation to deduct or withhold would not have arisen if the Bank had been beneficially entitled to the interest and had been within the charge to United Kingdom corporation tax as respects it).
12.9.4 If the Bank determines, in its absolute discretion, that it has received, realised, utilised and retained a Tax benefit by reason of any deduction or withholding in respect of Taxes from any amount payable to the Security Trustee (or if the Security Trustee is required to make any such deduction or withholding from any amount payable to any Facility Beneficiary), the amount payable by that Guarantor shall be increased to the extent necessary to ensure that, after the making of such deduction or withholding, the Security Trustee (or, as the case may be, that Facility Beneficiary) receives on the due date for payment of that amount (and retains, free from any liability in respect of that deduction or withholding) a net amount equal to the amount which Newco has it would have received had no such deduction or withholding been required to be made an and that Guarantor shall indemnify the Security Trustee, on demand by the Security Trustee, against all Losses suffered, incurred or paid by it or any Facility Beneficiary by reason of any failure of any Guarantor to make any such deduction or withholding or by reason of any increased amount not being paid on the due date. Each Guarantor shall promptly deliver to the Security Trustee all receipts, certificates and other proof evidencing the amounts (if any) paid or payable in respect of any deduction or withholding as aforesaid.
11.1.2 No Guarantor shall be required to make any increased payment under this Clause 12.9. clause 11.1.1 if, on the Bank shall, provided that it has received all amounts date on which are then due and payable by the obligors under any Financing Document, pay to Newco (to the extent that the Bank can do so without prejudicing the amount of from which the benefit or repayment and the right of the Bank to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the Bank, in its absolute discretion shall determine, will leave the Bank in no worse position than it would have been in if the relevant deduction or withholding had not was made fell due, the payment could have been required, provided that:
(a) the Bank shall have an absolute discretion as made to the time at relevant Facility Beneficiary without a deduction or withholding if it was a Qualifying Bank, but on that date that Facility Beneficiary is not, or has ceased to be, a Qualifying Bank, other than as a result of any change after the date it became a Facility Beneficiary under this Guarantee in (or in the interpretation, administration or application of) any law or any published practice or concession of any relevant taxing authority.
11.1.3 A Facility Beneficiary making or intending to make a claim under clause 11.1.1 shall promptly notify the Security Trustee of the event which and will give, or has given, rise to the order and manner in claim, following which it realises or utilizes any Tax benefit and the Security Trustee shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any credit or refund or similar benefit;
(b) notify the Bank shall not be obliged to disclose any information regarding its business Tax affairs or Tax computations;
(c) if the Bank has made a payment to Newco pursuant to this Clause 12Bluewater Agent.
Appears in 1 contract
