Indemnity for Taxes. (a) Any and all payments by or on account of any obligation of the Seller hereunder shall be made without deduction or withholding for any Taxes, except as required by applicable Law. If any applicable Law requires the deduction or withholding of any Tax from any such payment by the Seller, then the Seller shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the Seller shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Affected Person receives an amount equal to the sum it would have received had no such deduction or withholding been made. In addition, if the Seller is required to pay any Tax pursuant to paragraph 1(r) of Exhibit IV that is (i) related to any payment by or on account of any obligation of the Seller hereunder and (ii) an Excluded Tax, the Seller shall be entitled to deduct the amount of such Tax paid from payments hereunder by the Seller. The Seller will indemnify each Affected Person against any Indemnified Taxes (i) imposed on an Affected Person pursuant to a payment made from the Seller with respect of such Affected Person’s Purchases or Reinvestments or (ii) which arise otherwise by reason of the execution, delivery, performance or enforcement of the Transaction Documents. (b) Each Affected Person will promptly notify the Seller in writing of any event of which it has knowledge, which will entitle such Affected Person to compensation pursuant to this Section 3.3; provided, however, that failure of any Affected Person to demand indemnification for any Indemnified Taxes shall not constitute a waiver of such right to indemnification, except that the Seller shall not be required to indemnify an Affected Person for Taxes under this Section 3.3 unless such Affected Person notifies the Seller of such claim no later than 180 days after such Affected Person has knowledge of such Taxes being imposed or arising. Any notice claiming compensation under this Section 3.3 shall set forth in reasonable detail the additional amount or amounts to be paid to it hereunder and shall be conclusive in the absence of manifest error. The Seller shall be obligated to pay any claim for Indemnified Taxes within 10 days upon receipt of such written notice (other than Indemnified Taxes and expenses payable by reason of the action or inaction of the applicable Affected Person); provided that if the Seller reasonably believes that such Taxes were not correctly or legally asserted, the Affected Person will use reasonable efforts to cooperate with the Seller to obtain a refund of such Taxes (which shall be paid in accordance with Section 3.3(c)) so long as such efforts would not, in the sole determination of the Affected Person, result in any additional costs or expenses or be otherwise disadvantageous to the Affected Person. (c) If an Affected Person determines, in its sole discretion, exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by the Seller, it shall pay over such refund to the Seller (but only to the extent of indemnity payments made, or additional amounts paid, by the Seller under this Section 3.3 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of such Affected Person and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund net of any applicable Taxes payable in respect of such interest); provided, that the Seller agrees to repay each such Affected Person, promptly after the request of such Affected Person, the amount paid over to the Seller (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such Affected Person is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary, in no event will any Affected Person be required to pay any amount to the Seller the payment of which would place such Affected Person in a less favorable net after-Tax position than such Affected Person would have been in if the Taxes subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Taxes had never been paid. This Section 3.3(c) shall not be construed to require any Affected Person to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the Seller or any other Person. (d) Each Affected Person agrees that it will use reasonable efforts to reduce or eliminate any claim for indemnity pursuant to this Section 3.3 or compensation pursuant to Section 1.7 including, subject to applicable Law, a change in the funding office of such Affected Person; provided, however, that nothing contained herein shall obligate any Affected Person to take any action that imposes on such Affected Person any unreimbursed additional costs or legal or regulatory burdens which such Affected Person reasonably considers material, nor which, in such Affected Person’s reasonable opinion, would have an adverse effect on its business, operations or financial condition. (e) If any Affected Person requests compensation under Section 1.7, or if the Seller is required to pay any Indemnified Taxes or additional amounts to any Affected Person or any Governmental Authority for the account of any Affected Person pursuant to this Section 3.3 and, in each case, such Affected Person has declined or is unable to designate a different lending office in accordance with Section 3.3(d) above, then the Seller may, at its sole expense and effort, upon notice to such Affected Person and the Administrator, require such Affected Person to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 7.3), all of its interests, rights (other than its existing rights to payments pursuant to Section 1.7 or this Section 3.3) and obligations under this Agreement and the related Transaction Documents to a Person eligible to be a Purchasing Committed Purchaser under Section 7.3(b) that shall assume such obligations (which such Purchasing Committed Purchaser may be another Affected Person, if an Affected Person accepts such assignment); provided that: (i) such Affected Person shall have received payment of an amount equal to the outstanding principal of its Commitment, accrued Discount thereon, accrued fees and all other amounts payable to it hereunder and under the other Transaction Documents from the assignee (to the extent of such outstanding principal and accrued Discount and fees) or the Seller (in the case of all other amounts); (ii) in the case of any such assignment resulting from a claim for compensation under Section 1.7 or payments required to be made pursuant to this Section 3.3, such assignment will result in a reduction in such compensation or payments thereafter; and; (iii) such assignment does not conflict with applicable Law. An Affected Person shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Affected Person or otherwise, the circumstances entitling the Seller to require such assignment and delegation cease to apply.
Appears in 7 contracts
Samples: Receivables Purchase Agreement (Vistra Corp.), Receivables Purchase Agreement (Vistra Corp.), Receivables Purchase Agreement (Vistra Corp.)
Indemnity for Taxes. (a) Any and all payments by or on account of any obligation of the Seller Borrower hereunder shall be made without deduction or withholding for any Taxes, except as required by applicable Law. If any applicable Law requires the deduction or withholding of any Tax from any such payment by the SellerBorrower, then the Seller Borrower shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the Seller Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Affected Person receives an amount equal to the sum it would have received had no such deduction or withholding been made. In addition, if the Seller is required Subject to pay any Tax pursuant to paragraph 1(r) of Exhibit IV that is (i) related to any payment by or on account of any obligation of the Seller hereunder and (ii) an Excluded TaxSection 2.13(b), the Seller Borrower shall be entitled to deduct the amount of such Tax paid from payments hereunder by the Seller. The Seller will indemnify each Affected Person against for the full amount of any Indemnified Taxes (i) including Indemnified Taxes imposed or asserted on an or attributable to amount payable under this Section payable or paid by such Affected Person pursuant or required to be withheld or deducted from a payment made from the Seller with respect of to such Affected Person’s Purchases or Reinvestments or (ii) which arise otherwise by reason of the execution, delivery, performance or enforcement of the Transaction Documents.
(b) Each Affected Person will promptly notify the Seller Borrower in writing of any event of which it has knowledge, which will entitle such Affected Person to compensation pursuant to this Section 3.32.13; provided, however, that failure of any Affected Person to demand indemnification for any Indemnified Taxes shall not constitute a waiver of such right to indemnification, except that the Seller Borrower shall not be required to indemnify an Affected Person for Taxes under this Section 3.3 2.13 unless such Affected Person notifies the Seller Borrower of such claim no later than 180 days after such Affected Person has knowledge of such Taxes being imposed or arising. Any notice claiming compensation under this Section 3.3 2.13 shall set forth in reasonable detail the additional amount or amounts to be paid to it hereunder and shall be conclusive in the absence of manifest error. The Seller Borrower shall be obligated to pay any claim for Indemnified Taxes within 10 days upon receipt of such written notice (other than Indemnified Taxes and expenses payable by reason of the action or inaction of the applicable Affected Person); provided that if the Seller Borrower reasonably believes that such Taxes were not correctly or legally asserted, the Affected Person will use reasonable efforts to cooperate with the Seller Borrower to obtain a refund of such Taxes (which shall be paid in accordance with Section 3.3(c2.13(c)) so long as such efforts would not, in the sole determination of the Affected Person, result in any additional costs or expenses or be otherwise disadvantageous to the Affected Person.
(c) The Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse for the payment of, any Other Taxes.
(d) If an Affected Person determines, in its sole discretion, exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by the SellerBorrower, it shall pay over such refund to the Seller Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Seller Borrower under this Section 3.3 2.13 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of such Affected Person and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund net of any applicable Taxes payable in respect of such interest); provided, that the Seller Borrower agrees to repay each such Affected Person, promptly after the request of such Affected Person, the amount paid over to the Seller Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such Affected Person is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary, in no event will any Affected Person be required to pay any amount to the Seller Borrower the payment of which would place such Affected Person in a less favorable net after-Tax position than such Affected Person would have been in if the Taxes subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Taxes had never been paid. This Section 3.3(c) 2.13 shall not be construed to require any Affected Person to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the Seller Borrower or any other Person.
(de) Each Affected Person agrees that it will If any Lender requests compensation under Section 2.12, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to this Section 2.13, then such Lender shall (at the request of the Borrower) use reasonable efforts to designate a different lending office for funding or booking its portion of Aggregate Exposure Amount hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce or eliminate any claim for indemnity pursuant to this Section 3.3 or compensation amounts payable pursuant to Section 1.7 including2.12 or Section 2.13, subject to applicable Lawas the case may be, a change in the funding office of future, and (ii) would not subject such Affected Person; providedLender to any unreimbursed cost or expense, however, that nothing contained herein shall obligate any Affected Person would not otherwise be disadvantageous or burdensome to such Lender and would not otherwise require such Lender to take any action that imposes on such Affected Person any unreimbursed additional costs inconsistent with its internal policies or legal or regulatory burdens which restrictions. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such Affected Person reasonably considers material, nor which, in such Affected Person’s reasonable opinion, would have an adverse effect on its business, operations designation or financial conditionassignment.
(ef) (I) If any Affected Person Lender requests compensation under Section 1.72.12, or if the Seller Borrower is required to pay any Indemnified Taxes or additional amounts to any Affected Person Lender or any Governmental Authority for the account of any Affected Person Lender pursuant to this Section 3.3 2.13 and, in each case, such Affected Person Lender has declined or is unable to designate a different lending office in accordance with Section 3.3(dparagraph (e) aboveof this Section, then (II) if any Committed Lender becomes a Defaulting Committed Lender or (III) if any Lender is a Non-Consenting Lender, then, in each case, the Seller Borrower may, at its sole expense and effort, upon notice to the Facility Agent of such Affected Person Lender Group and the AdministratorAdministrative Agent, require such Affected Person Lender Group to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 7.310.03), all of its interests, rights (other than its existing rights to payments pursuant to Section 1.7 2.12 or this Section 3.32.13) and obligations under this Agreement and the related Transaction Documents Specified Matter to a Person eligible to be a Purchasing Committed Purchaser under Section 7.3(b) an Eligible Assignee that shall assume such obligations (which such Purchasing Committed Purchaser assignee may be another Affected PersonLender, if an Affected Person a Lender accepts such assignment); provided that:
(i) the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 10.03;
(ii) the Borrower shall have received consent from the Administrative Agent and each LC Issuer (other than any LC Issuer that is part of the Lender Group that is being replaced), which consent shall not be unreasonably withheld or delayed;
(iii) such Affected Person Lender Group shall have received payment of an amount equal to the outstanding principal of its CommitmentAggregate Exposure Amount, accrued Discount interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Transaction Documents from the assignee (to the extent of such outstanding principal and accrued Discount interest and fees) or the Seller Borrower (in the case of all other amounts);
(iiiv) in the case of any assignment by a Lender Group resulting from a Lender in such Lender Group becoming a Non-Consenting Lender, the applicable assignee Lender Group shall have consented to the applicable amendment, waiver or consent;
(v) in the case of any such assignment resulting from a claim for compensation under Section 1.7 2.12 or payments required to be made pursuant to this Section 3.32.13, such assignment will result in a reduction in such compensation or payments thereafter; and;
(iiivi) such assignment does not conflict with applicable Law; and
(vii) all Letters of Credit issued by the LC Issuer in such Lender Group shall have been canceled or terminated and all accrued and unpaid fees related thereto shall have been paid in full. An Affected Person A Lender Group shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Affected Person Lender or otherwise, the circumstances entitling the Seller Borrower to require such assignment and delegation cease to apply.
Appears in 3 contracts
Samples: Receivables Loan and Servicing Agreement (NRG Energy, Inc.), Receivables Loan and Servicing Agreement (NRG Energy, Inc.), Receivables Loan and Servicing Agreement (NRG Energy, Inc.)
Indemnity for Taxes. (a) Any and all payments by or on account of any obligation of the Seller Borrower hereunder shall be made free and clear of and without deduction or withholding for any Indemnified Taxes or Other Taxes, except as ; provided that if the Borrower shall be required by applicable Law. If to deduct any applicable Law requires the deduction Indemnified Taxes or withholding of any Tax Other Taxes from any such payment by the Sellerpayments, then the Seller shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then (i) the sum payable by the Seller shall be increased as necessary so that after such deduction or withholding has been made making all required deductions (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Affected Person recipient of such payment receives an amount equal to the sum it would have received had no such deduction or withholding deductions been made. , (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the relevant Official Body in accordance with applicable law.
(b) In addition, if the Seller is required to Borrower shall pay any Tax pursuant Other Taxes to paragraph 1(rthe relevant Official Body in accordance with applicable law.
(c) The Borrower shall indemnify each Indemnified Party within 10 days after written demand therefor, for the full amount of Exhibit IV that is (i) related any Indemnified Taxes or Other Taxes paid by such Indemnified Party on or with respect to any payment by or on account of any obligation of the Seller Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) and (ii) an Excluded Taxany penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the Seller shall be entitled relevant Official Body. A certificate as to deduct the amount of such Tax paid from payments hereunder payment or liability delivered to the Borrower by an Indemnified Party, or by the Seller. The Seller will indemnify each Affected Person against any Indemnified Taxes (i) imposed Administrative Agent on an Affected Person pursuant to its own behalf, on behalf of another Agent or on behalf of a payment made from the Seller with respect of such Affected Person’s Purchases or Reinvestments or (ii) which arise otherwise by reason of the executionLender, delivery, performance or enforcement of the Transaction Documentsshall be conclusive absent manifest error.
(bd) Each Affected Person will promptly notify the Seller in writing As soon as practicable after any payment of any event of which it has knowledge, which will entitle such Affected Person to compensation pursuant to this Section 3.3; provided, however, that failure of any Affected Person to demand indemnification for any Indemnified Taxes or Other Taxes by the Borrower to an Official Body, the Borrower shall not constitute deliver to the related Funding Agent the original or a waiver certified copy of a receipt issued by such Official Body evidencing such payment, a copy of the return reporting such payment or other evidence of such right payment reasonably satisfactory to indemnification, except that the Seller shall not be required to indemnify an Affected Person for Taxes under this Section 3.3 unless such Affected Person notifies the Seller of such claim no later than 180 days after such Affected Person has knowledge of such Taxes being imposed or arising. Any notice claiming compensation under this Section 3.3 shall set forth in reasonable detail the additional amount or amounts to be paid to it hereunder and shall be conclusive in the absence of manifest error. The Seller shall be obligated to pay any claim for Indemnified Taxes within 10 days upon receipt of such written notice (other than Indemnified Taxes and expenses payable by reason of the action or inaction of the applicable Affected Person); provided that if the Seller reasonably believes that such Taxes were not correctly or legally asserted, the Affected Person will use reasonable efforts to cooperate with the Seller to obtain a refund of such Taxes (which shall be paid in accordance with Section 3.3(c)) so long as such efforts would not, in the sole determination of the Affected Person, result in any additional costs or expenses or be otherwise disadvantageous to the Affected PersonFunding Agent.
(ce) Any Foreign Lender that is entitled to an exemption from or reduction of withholding Tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law, such properly completed and executed documentation prescribed by applicable law or reasonably requested by the Borrower as will permit such payments to be made without withholding or at a reduced rate.
(f) If an Affected Person Indemnified Party determines, in its sole discretion, exercised in good faith, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the SellerBorrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 2.15, it shall pay over such refund to the Seller Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Seller Borrower under this Section 3.3 2.15 with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of such Affected Person Indemnified Party and without interest (other than any interest paid by the relevant Governmental Authority Official Body with respect to such refund net of any applicable Taxes payable in respect of such interestrefund); provided, provided that the Seller agrees to repay each such Affected PersonBorrower, promptly after upon the request of such Affected PersonIndemnified Party, agrees to repay the amount paid over to the Seller Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental AuthorityOfficial Body) to such Indemnified Party in the event such Affected Person Indemnified Party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary, in no event will any Affected Person be required to pay any amount to the Seller the payment of which would place such Affected Person in a less favorable net after-Tax position than such Affected Person would have been in if the Taxes subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Taxes had never been paidOfficial Body. This Section 3.3(c) shall not be construed to require any Affected Person Indemnified Party to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the Seller Borrower or any other Person.
(d) Each Affected Person agrees that it will use reasonable efforts to reduce or eliminate any claim for indemnity pursuant to this Section 3.3 or compensation pursuant to Section 1.7 including, subject to applicable Law, a change in the funding office of such Affected Person; provided, however, that nothing contained herein shall obligate any Affected Person to take any action that imposes on such Affected Person any unreimbursed additional costs or legal or regulatory burdens which such Affected Person reasonably considers material, nor which, in such Affected Person’s reasonable opinion, would have an adverse effect on its business, operations or financial condition.
(e) If any Affected Person requests compensation under Section 1.7, or if the Seller is required to pay any Indemnified Taxes or additional amounts to any Affected Person or any Governmental Authority for the account of any Affected Person pursuant to this Section 3.3 and, in each case, such Affected Person has declined or is unable to designate a different lending office in accordance with Section 3.3(d) above, then the Seller may, at its sole expense and effort, upon notice to such Affected Person and the Administrator, require such Affected Person to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 7.3), all of its interests, rights (other than its existing rights to payments pursuant to Section 1.7 or this Section 3.3) and obligations under this Agreement and the related Transaction Documents to a Person eligible to be a Purchasing Committed Purchaser under Section 7.3(b) that shall assume such obligations (which such Purchasing Committed Purchaser may be another Affected Person, if an Affected Person accepts such assignment); provided that:
(i) such Affected Person shall have received payment of an amount equal to the outstanding principal of its Commitment, accrued Discount thereon, accrued fees and all other amounts payable to it hereunder and under the other Transaction Documents from the assignee (to the extent of such outstanding principal and accrued Discount and fees) or the Seller (in the case of all other amounts);
(ii) in the case of any such assignment resulting from a claim for compensation under Section 1.7 or payments required to be made pursuant to this Section 3.3, such assignment will result in a reduction in such compensation or payments thereafter; and;
(iii) such assignment does not conflict with applicable Law. An Affected Person shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Affected Person or otherwise, the circumstances entitling the Seller to require such assignment and delegation cease to apply.
Appears in 3 contracts
Samples: Receivables Loan Agreement (TRW Automotive Inc), Receivables Loan Agreement (TRW Automotive Inc), Receivables Loan Agreement (TRW Automotive Holdings Corp)
Indemnity for Taxes. (a) Any and all payments by or on account of any obligation of the Seller hereunder under any Transaction Document shall be made without deduction or withholding for any Taxes, except as required by applicable Lawlaw. If any applicable Law law (as determined in the good faith discretion of the Seller) requires the deduction or withholding of any Tax from any such payment by the Seller, then the Seller shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the Seller shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this SectionSection 10.02) the applicable Affected Person Indemnified Party receives an amount equal to the sum it would have received had no such deduction or withholding been made. In addition, if the Seller is required to pay any Tax pursuant to paragraph 1(r) of Exhibit IV that is (i) related to any payment by or on account of any obligation of the Seller hereunder and (ii) an Excluded Tax, the Seller shall be entitled to deduct the amount of such Tax paid from payments hereunder by the Seller. The Seller will indemnify each Affected Person against any Indemnified Taxes (i) imposed on an Affected Person pursuant to a payment made from the Seller with respect of such Affected Person’s Purchases or Reinvestments or (ii) which arise otherwise by reason of the execution, delivery, performance or enforcement of the Transaction Documents.
(b) Each Affected Person The Seller shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the written request of the applicable Indemnified Party timely reimburse it for the payment of, any Other Taxes.
(c) The Seller shall indemnify each Indemnified Party, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 10.02) payable or paid by such Indemnified Party or required to be withheld or deducted from a payment to such Indemnified Party and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The Administrative Agent and each Facility Agent will promptly notify the Seller in writing of any event of which it has knowledge, which will entitle such Affected it or any Person in its Purchase Group to compensation pursuant to this Section 3.310.02; provided, however, that failure of any Affected Person Indemnified Party to demand indemnification for any Indemnified Taxes shall not constitute a waiver of such right to indemnification, except that the Seller shall not be required to indemnify an Affected Person Indemnified Party for Taxes under this Section 3.3 10.02 unless such Affected Person Indemnified Party notifies the Seller of such claim no later than 180 days after such Affected Person Indemnified Party has knowledge of such Taxes being imposed or arising. Any notice claiming compensation under this Section 3.3 10.02 shall set forth in reasonable detail the additional amount or amounts to be paid to it hereunder and shall be conclusive in the absence of manifest error. The Absent manifest error, the Seller shall be obligated to pay any claim for Indemnified Taxes within 10 days promptly upon receipt of such written notice notice.
(other than d) Each Indemnified Taxes and expenses payable by reason of the action or inaction of the applicable Affected Person); provided Party agrees that if the Seller reasonably believes that such Taxes were not correctly or legally asserted, the Affected Person it will use reasonable efforts to cooperate with reduce or eliminate any claim for indemnity pursuant to this Section 10.02 including, subject to applicable Law, a change in the Seller to obtain a refund funding office of such Taxes (which Indemnified Party; provided, however, that nothing contained herein shall be paid in accordance with Section 3.3(c)) so long as obligate any Indemnified Party to take any action that imposes on such efforts would not, in the sole determination of the Affected Person, result in Indemnified Party any additional costs (without reimbursement) or expenses imposes legal or be otherwise disadvantageous to the Affected Personregulatory burdens which such Indemnified Party reasonably considers material, nor which, in such Indemnified Party’s reasonable opinion, would have an adverse effect on its business, operations or financial condition.
(ce) If an Affected Person any party determines, in its sole discretion, discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section (including by the Sellerpayment of additional amounts pursuant to this Section), it shall pay over to the indemnifying party an amount equal to such refund to the Seller (but only to the extent of indemnity payments made, or additional amounts paid, by the Seller made under this Section 3.3 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Affected Person indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund net of any applicable Taxes payable in respect of such interestrefund); provided. Such indemnifying party, that the Seller agrees to repay each such Affected Person, promptly after upon the request of such Affected Personindemnified party, shall repay to such indemnified party the amount paid over pursuant to the Seller this subsection (e) plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Affected Person indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrarycontrary in this subsection (e), in no event will any Affected Person the indemnified party be required to pay any amount to the Seller an indemnifying party pursuant to this subsection (e) the payment of which would place such Affected Person the indemnified party in a less favorable net after-Tax position than such Affected Person the indemnified party would have been in if the Taxes Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Taxes Tax had never been paid. This Section 3.3(csubsection (e) shall not be construed to require any Affected Person indemnified party to make available its Tax returns (or any other information relating to its Taxes which that it deems confidential) to the Seller indemnifying party or any other Person.
(d) Each Affected Person agrees that it will use reasonable efforts to reduce or eliminate any claim for indemnity pursuant to this Section 3.3 or compensation pursuant to Section 1.7 including, subject to applicable Law, a change in the funding office of such Affected Person; provided, however, that nothing contained herein shall obligate any Affected Person to take any action that imposes on such Affected Person any unreimbursed additional costs or legal or regulatory burdens which such Affected Person reasonably considers material, nor which, in such Affected Person’s reasonable opinion, would have an adverse effect on its business, operations or financial condition.
(e) If any Affected Person requests compensation under Section 1.7, or if the Seller is required to pay any Indemnified Taxes or additional amounts to any Affected Person or any Governmental Authority for the account of any Affected Person pursuant to this Section 3.3 and, in each case, such Affected Person has declined or is unable to designate a different lending office in accordance with Section 3.3(d) above, then the Seller may, at its sole expense and effort, upon notice to such Affected Person and the Administrator, require such Affected Person to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 7.3), all of its interests, rights (other than its existing rights to payments pursuant to Section 1.7 or this Section 3.3) and obligations under this Agreement and the related Transaction Documents to a Person eligible to be a Purchasing Committed Purchaser under Section 7.3(b) that shall assume such obligations (which such Purchasing Committed Purchaser may be another Affected Person, if an Affected Person accepts such assignment); provided that:
(i) such Affected Person shall have received payment of an amount equal to the outstanding principal of its Commitment, accrued Discount thereon, accrued fees and all other amounts payable to it hereunder and under the other Transaction Documents from the assignee (to the extent of such outstanding principal and accrued Discount and fees) or the Seller (in the case of all other amounts);
(ii) in the case of any such assignment resulting from a claim for compensation under Section 1.7 or payments required to be made pursuant to this Section 3.3, such assignment will result in a reduction in such compensation or payments thereafter; and;
(iii) such assignment does not conflict with applicable Law. An Affected Person shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Affected Person or otherwise, the circumstances entitling the Seller to require such assignment and delegation cease to apply.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Ferguson Enterprises Inc. /DE/), Receivables Purchase Agreement (Ferguson PLC)
Indemnity for Taxes. (a) Any and all payments by or on account of any obligation of the Seller Borrower hereunder shall be made without deduction or withholding for any Taxes, except as required by applicable Law. If any applicable Law requires the deduction or withholding of any Tax from any such payment by the SellerBorrower, then the Seller Borrower shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the Seller Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Affected Person receives an amount equal to the sum it would have received had no such deduction or withholding been made. In addition, if the Seller is required Subject to pay any Tax pursuant to paragraph 1(r) of Exhibit IV that is (i) related to any payment by or on account of any obligation of the Seller hereunder and (ii) an Excluded TaxSection 2.13(b), the Seller Borrower shall be entitled to deduct the amount of such Tax paid from payments hereunder by the Seller. The Seller will indemnify each Affected Person against for the full amount of any Indemnified Taxes (i) including Indemnified Taxes imposed or asserted on an or attributable to amount payable under this Section payable or paid by such Affected Person pursuant or required to be withheld or deducted from a payment made from the Seller with respect of to such Affected Person’s Purchases or Reinvestments or (ii) which arise otherwise by reason of the execution, delivery, performance or enforcement of the Transaction Documents.
(b) Each Affected Person will promptly notify the Seller Borrower in writing of any event of which it has knowledge, which will entitle such Affected Person to compensation pursuant to this Section 3.32.13; provided, however, that failure of any Affected Person to demand indemnification for any Indemnified Taxes shall not constitute a waiver of such right to indemnification, except that the Seller Borrower shall not be required to indemnify an Affected Person for Taxes under this Section 3.3 2.13 unless such Affected Person notifies the Seller Borrower of such claim no later than 180 days after such Affected Person has knowledge of such Taxes being imposed or arising. Any notice claiming compensation under this Section 3.3 2.13 shall set forth in reasonable detail the additional amount or amounts to be paid to it hereunder and shall be conclusive in the absence of manifest error. The Seller Borrower shall be obligated to pay any claim for Indemnified Taxes within 10 days upon receipt of such written notice (other than Indemnified Taxes and expenses payable by reason of the action or inaction of the applicable Affected Person); provided that if the Seller Borrower reasonably believes that such Taxes were not correctly or legally asserted, the Affected Person will use reasonable efforts to cooperate with the Seller Borrower to obtain a refund of such Taxes (which shall be paid in accordance with Section 3.3(c2.13(c)) so long as such efforts would not, in the sole determination of the Affected Person, result in any additional costs or expenses or be otherwise disadvantageous to the Affected Person.
(c) The Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse for the payment of, any Other Taxes.
(d) If an Affected Person determines, in its sole discretion, exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by the SellerBorrower, it shall pay over such refund to the Seller Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Seller Borrower under this Section 3.3 2.13 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of such Affected Person and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund net of any applicable Taxes payable in respect of such interest); provided, that the Seller Borrower agrees to repay each such Affected Person, promptly after the request of such Affected Person, the amount paid over to the Seller Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such Affected Person is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary, in no event will any Affected Person be required to pay any amount to the Seller Borrower the payment of which would place such Affected Person in a less favorable net after-Tax position than such Affected Person would have been in if the Taxes subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Taxes had never been paid. This Section 3.3(c) 2.13 shall not be construed to require any Affected Person to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the Seller Borrower or any other Person.
(de) Each Affected Person agrees that it will If any Lender requests compensation under Section 2.12, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to this Section 2.13, then such Lender shall (at the request of the Borrower) use reasonable efforts to designate a different lending office for funding or booking its portion of Aggregate Exposure Amount hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce or eliminate any claim for indemnity pursuant to this Section 3.3 or compensation amounts payable pursuant to Section 1.7 including2.12 or Section 2.13, subject to applicable Lawas the case may be, a change in the funding office of future, and (ii) would not subject such Affected Person; providedLender to any unreimbursed cost or expense, however, that nothing contained herein shall obligate any Affected Person would not otherwise be disadvantageous or burdensome to such Lender and would not otherwise require such Lender to take any action that imposes on such Affected Person any unreimbursed additional costs inconsistent with its internal policies or legal or regulatory burdens which restrictions. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such Affected Person reasonably considers material, nor which, in such Affected Person’s reasonable opinion, would have an adverse effect on its business, operations designation or financial conditionassignment.
(ef) (I) If any Affected Person Lender requests compensation under Section 1.72.12, or if the Seller Borrower is required to pay any Indemnified Taxes or additional amounts to any Affected Person Lender or any Governmental Authority for the account of any Affected Person Lender pursuant to this Section 3.3 2.13 and, in each case, such Affected Person Lender has declined or is unable to designate a different lending office in accordance with Section 3.3(dparagraph (e) aboveof this Section, then (II) if any Committed Lender becomes a Defaulting Committed Lender or (III) if any Lender is a Non-Consenting Lender, then, in each case, the Seller Borrower may, at its sole expense and effort, upon notice to the Facility Agent of such Affected Person Lender Group and the AdministratorAdministrative Agent, require such Affected Person Lender Group to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 7.310.03), all of its interests, rights (other than its existing rights to payments pursuant to Section 1.7 2.12 or this Section 3.32.13) and obligations under this Agreement and the related Transaction Documents Specified Matter to a Person eligible to be a Purchasing Committed Purchaser under Section 7.3(b) an Eligible Assignee that shall assume such obligations (which such Purchasing Committed Purchaser assignee may be another Affected PersonLender, if an Affected Person a Lender accepts such assignment); provided that:
(i) the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 10.03;
(ii) the Borrower shall have received consent from the Administrative Agent and each LC Issuer (other than any LC Issuer that is part of the Lender Group that is being replaced), which consent shall not be unreasonably withheld or delayed;
(iii) such Affected Person Lender Group shall have received payment of an amount equal to the outstanding principal of its CommitmentAggregate Exposure Amount, accrued Discount interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Transaction Documents from the assignee (to the extent of such outstanding principal and accrued Discount interest and fees) or the Seller Borrower (in the case of all other amounts);
(iiiv) in the case of any assignment by a Lender Group resulting from a Lender in such Lender Group becoming a Non-Consenting Lender, the applicable assignee Lender Group shall have consented to the applicable amendment, waiver or consent;
(v) in the case of any such assignment resulting from a claim for compensation under Section 1.7 2.12 or payments required to be made pursuant to this Section 3.32.13, such assignment will result in a reduction in such compensation or payments thereafter; and;
(iiivi) such assignment does not conflict with applicable Law. An Affected Person ; and
(vii) all Letters of Credit issued by the LC Issuer in such Lender Group shall not be required to make any such assignment have been canceled or delegation if, prior thereto, as a result of a waiver by such Affected Person or otherwise, the circumstances entitling the Seller to require such assignment terminated and delegation cease to applyall accrued and unpaid fees related thereto shall have been paid in full.
Appears in 2 contracts
Samples: Receivables Loan and Servicing Agreement (NRG Energy, Inc.), Receivables Loan and Servicing Agreement (NRG Energy, Inc.)
Indemnity for Taxes. (a) Any and all payments by or on account of any obligation of the Seller hereunder under any Transaction Document shall be made without deduction or withholding for any Taxes, except as required by applicable Lawlaw. If any applicable Law law (as determined in the good faith discretion of the Seller) requires the deduction or withholding of any Tax from any such payment by the Seller, then the Seller shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the Seller shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this SectionSection 10.02) the applicable Affected Person Indemnified Party receives an amount equal to the sum it would have received had no such deduction or withholding been made. In addition, if the Seller is required to pay any Tax pursuant to paragraph 1(r) of Exhibit IV that is (i) related to any payment by or on account of any obligation of the Seller hereunder and (ii) an Excluded Tax, the Seller shall be entitled to deduct the amount of such Tax paid from payments hereunder by the Seller. The Seller will indemnify each Affected Person against any Indemnified Taxes (i) imposed on an Affected Person pursuant to a payment made from the Seller with respect of such Affected Person’s Purchases or Reinvestments or (ii) which arise otherwise by reason of the execution, delivery, performance or enforcement of the Transaction Documents.
(b) Each Affected Person The Seller shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the written request of the applicable Indemnified Party timely reimburse it for the payment of, any Other Taxes.
(c) The Seller shall indemnify each Indemnified Party, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 10.02) payable or paid by such Indemnified Party or required to be withheld or deducted from a payment to such Indemnified Party and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The Administrative Agent and each Facility Agent will promptly notify the Seller in writing of any event of which it has knowledge, which will entitle such Affected it or any Person in its Purchase Group to compensation pursuant to this Section 3.310.02; provided, however, that failure of any Affected Person Indemnified Party to demand indemnification for any Indemnified Taxes shall not constitute a waiver of such right to indemnification, except that the Seller shall not be required to indemnify an Affected Person Indemnified Party for Taxes under this Section 3.3 10.02 unless such Affected Person Indemnified Party notifies the Seller of such claim no later than 180 days after such Affected Person Indemnified Party has knowledge of such Taxes being imposed or arising. Any notice claiming compensation under this Section 3.3 10.02 shall set forth in reasonable detail the additional amount or amounts to be paid to it hereunder and shall be conclusive in the absence of manifest error. The Absent manifest error, the Seller shall be obligated to pay any claim for Indemnified Taxes within 10 days promptly upon receipt of such written notice (other than Indemnified Taxes and expenses payable by reason of the action or inaction of the applicable Affected Person); provided that if the Seller reasonably believes that such Taxes were not correctly or legally asserted, the Affected Person will use reasonable efforts to cooperate with the Seller to obtain a refund of such Taxes (which shall be paid in accordance with Section 3.3(c)) so long as such efforts would not, in the sole determination of the Affected Person, result in any additional costs or expenses or be otherwise disadvantageous to the Affected Personnotice.
(c) If an Affected Person determines, in its sole discretion, exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by the Seller, it shall pay over such refund to the Seller (but only to the extent of indemnity payments made, or additional amounts paid, by the Seller under this Section 3.3 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of such Affected Person and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund net of any applicable Taxes payable in respect of such interest); provided, that the Seller agrees to repay each such Affected Person, promptly after the request of such Affected Person, the amount paid over to the Seller (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such Affected Person is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary, in no event will any Affected Person be required to pay any amount to the Seller the payment of which would place such Affected Person in a less favorable net after-Tax position than such Affected Person would have been in if the Taxes subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Taxes had never been paid. This Section 3.3(c) shall not be construed to require any Affected Person to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the Seller or any other Person.
(d) Each Affected Person agrees that it will use reasonable efforts to reduce or eliminate any claim for indemnity pursuant to this Section 3.3 or compensation pursuant to Section 1.7 including, subject to applicable Law, a change in the funding office of such Affected Person; provided, however, that nothing contained herein shall obligate any Affected Person to take any action that imposes on such Affected Person any unreimbursed additional costs or legal or regulatory burdens which such Affected Person reasonably considers material, nor which, in such Affected Person’s reasonable opinion, would have an adverse effect on its business, operations or financial condition.
(e) If any Affected Person requests compensation under Section 1.7, or if the Seller is required to pay any Indemnified Taxes or additional amounts to any Affected Person or any Governmental Authority for the account of any Affected Person pursuant to this Section 3.3 and, in each case, such Affected Person has declined or is unable to designate a different lending office in accordance with Section 3.3(d) above, then the Seller may, at its sole expense and effort, upon notice to such Affected Person and the Administrator, require such Affected Person to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 7.3), all of its interests, rights (other than its existing rights to payments pursuant to Section 1.7 or this Section 3.3) and obligations under this Agreement and the related Transaction Documents to a Person eligible to be a Purchasing Committed Purchaser under Section 7.3(b) that shall assume such obligations (which such Purchasing Committed Purchaser may be another Affected Person, if an Affected Person accepts such assignment); provided that:
(i) such Affected Person shall have received payment of an amount equal to the outstanding principal of its Commitment, accrued Discount thereon, accrued fees and all other amounts payable to it hereunder and under the other Transaction Documents from the assignee (to the extent of such outstanding principal and accrued Discount and fees) or the Seller (in the case of all other amounts);
(ii) in the case of any such assignment resulting from a claim for compensation under Section 1.7 or payments required to be made pursuant to this Section 3.3, such assignment will result in a reduction in such compensation or payments thereafter; and;
(iii) such assignment does not conflict with applicable Law. An Affected Person shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Affected Person or otherwise, the circumstances entitling the Seller to require such assignment and delegation cease to apply.
Appears in 1 contract
Indemnity for Taxes. (a) Any and all payments by or on account of any obligation of the Seller hereunder shall be made free and clear of and without deduction or withholding for any Indemnified Taxes or Other Taxes, except as required by applicable Law. If any applicable Law requires the deduction or withholding of any Tax from any such payment by the Seller, then ; provided that if the Seller shall be entitled required to make deduct any Indemnified Taxes or Other Taxes from such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Taxpayments, then (i) the sum payable by the Seller shall be increased as necessary so that after such deduction or withholding has been made making all required deductions (including such deductions and withholdings applicable to additional sums payable under this SectionSection 2.15) the applicable Affected Person recipient of such payment receives an amount equal to the sum it would have received had no such deduction or withholding deductions been made. , (ii) the Seller shall make such deductions, and (iii) the Seller shall pay the full amount deducted to the relevant Official Body in accordance with applicable Law.
(b) In addition, if the Seller is required to shall pay any Tax pursuant Other Taxes to paragraph 1(rthe relevant Official Body in accordance with applicable Law.
(c) The Seller shall indemnify each Indemnified Party within ten (10) days after written demand therefor, for the full amount of Exhibit IV that is (i) related any Indemnified Taxes or Other Taxes paid by such Indemnified Party on or with respect to the sale, assignment and transfer of the Portfolio Receivables under this Agreement, any Investment and any payment by or on account of any obligation of the Seller hereunder or where payment of any Indemnified Taxes or Other Taxes is otherwise made by an Indemnified Party pursuant to or in connection with this Agreement (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.15) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Official Body (iiother than those resulting from the Indemnified Party’s gross negligence, fraud or wilful misconduct). A certificate (along with a copy of the applicable documents from the relevant Official Body) an Excluded Tax, the Seller shall be entitled as to deduct the amount of such Tax paid from payments hereunder payment or liability delivered to the Seller by an Indemnified Party, or by the SellerAdministrative Agent on its own behalf, on behalf of another Agent or on behalf of a Purchaser, shall be conclusive absent manifest error. The Seller will indemnify each Affected Person against In connection with any Indemnified Taxes (i) imposed on an Affected Person pursuant to a payment made from the Seller with respect of such Affected Person’s Purchases or Reinvestments or (ii) which arise otherwise by reason of the execution, delivery, performance or enforcement of the Transaction Documents.
(b) Each Affected Person will promptly notify the Seller in writing of any event of which it has knowledge, which will entitle such Affected Person to request for compensation pursuant to this Section 3.3; provided2.15(c), however, that failure of any Affected Person the relevant Indemnified Party shall deliver to demand indemnification for any Indemnified Taxes shall not constitute the Master Servicer a waiver receipt (or other evidence reasonably satisfactory to the Master Servicer) of such right to indemnification, except that the Seller shall not be required to indemnify an Affected Person for Taxes under this Section 3.3 unless such Affected Person notifies the Seller of such claim no later than 180 days after such Affected Person has knowledge of such Taxes being imposed payment or arising. Any notice claiming compensation under this Section 3.3 shall set forth in reasonable detail the additional amount or amounts to be paid to it hereunder and shall be conclusive in the absence of manifest error. The Seller shall be obligated to pay any claim for Indemnified Taxes within 10 days upon receipt of such written notice (other than Indemnified Taxes and expenses payable by reason of the action or inaction of the applicable Affected Person); provided that if the Seller reasonably believes that such Taxes were not correctly or legally asserted, the Affected Person will use reasonable efforts to cooperate with the Seller to obtain a refund of such Taxes (which shall be paid in accordance with Section 3.3(c)) so long as such efforts would not, in the sole determination of the Affected Person, result in any additional costs or expenses or be otherwise disadvantageous to the Affected Person.
(c) If an Affected Person determines, in its sole discretion, exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by the Seller, it shall pay over such refund to the Seller (but only to the extent of indemnity payments made, or additional amounts paid, by the Seller under this Section 3.3 liability with respect to the Taxes giving rise to which such refund), net of all out-of-pocket expenses of such Affected Person and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund net of any applicable Taxes payable in respect of such interest); provided, that the Seller agrees to repay each such Affected Person, promptly after the request of such Affected Person, the amount paid over to the Seller (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such Affected Person is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary, in no event will any Affected Person be required to pay any amount to the Seller the payment of which would place such Affected Person in a less favorable net after-Tax position than such Affected Person would have been in if the Taxes subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Taxes had never been paid. This Section 3.3(c) shall not be construed to require any Affected Person to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the Seller or any other Personrelates.
(d) Each Affected Person agrees that it will use reasonable efforts As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Seller to reduce an Official Body, the Seller shall deliver to the related Purchaser Agent the original or eliminate a certified copy of a receipt issued by such Official Body evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to such Purchaser Agent. Simultaneously with the delivery to a Purchaser Agent of any claim for indemnity receipt, return or other evidence pursuant to this Section 3.3 or compensation pursuant 2.15(d), the Seller shall deliver a copy of the same to Section 1.7 including, subject to applicable Law, a change in the funding office of such Affected Person; provided, however, that nothing contained herein shall obligate any Affected Person to take any action that imposes on such Affected Person any unreimbursed additional costs or legal or regulatory burdens which such Affected Person reasonably considers material, nor which, in such Affected Person’s reasonable opinion, would have an adverse effect on its business, operations or financial conditionMaster Servicer.
(e) If (i) Upon the reasonable request of the Seller, any Affected Person requests compensation Foreign Purchaser that is entitled to an exemption from or reduction of withholding Tax under Section 1.7, or if the law of the jurisdiction in which the Seller is required to pay any Indemnified Taxes or additional amounts to any Affected Person located, or any Governmental Authority for treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the account of any Affected Person pursuant Seller (with a copy to this Section 3.3 the Administrative Agent), such properly completed and executed documentation prescribed by applicable Law (and, in each caseso far is practicable, within the time or times required by applicable Law) as will permit such Affected Person payments to be made without withholding or at a reduced rate; provided, that such Foreign Purchaser is legally able to complete, execute and deliver such documentation and such documentation has declined or is unable to designate a different lending office in accordance with Section 3.3(d) above, then not already been provided by the Seller may, at its sole expense and effort, upon notice to such Affected Person and the Administrator, require such Affected Person to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 7.3), all of its interests, rights (other than its existing rights to payments Foreign Purchaser pursuant to Section 1.7 or this Section 3.32.15(e)(ii) and obligations under this Agreement and the related Transaction Documents to a Person eligible to be a Purchasing Committed Purchaser under Section 7.3(b) that shall assume such obligations (which such Purchasing Committed Purchaser may be another Affected Person, if an Affected Person accepts such assignment); provided that:
(i) such Affected Person shall have received payment of an amount equal to the outstanding principal of its Commitment, accrued Discount thereon, accrued fees and all other amounts payable to it hereunder and under the other Transaction Documents from the assignee (to the extent of such outstanding principal and accrued Discount and fees) or the Seller (in the case of all other amounts);
(ii) in the case of any such assignment resulting from a claim for compensation under Section 1.7 or payments required to be made pursuant to this Section 3.3, such assignment will result in a reduction in such compensation or payments thereafter; and;
(iii) such assignment does not conflict with applicable Law. An Affected Person shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Affected Person or otherwise, the circumstances entitling the Seller to require such assignment and delegation cease to applyhereof.
Appears in 1 contract
Samples: Securitization Agreement (Bunge LTD)
Indemnity for Taxes. (a) Any and all payments by or on account of any obligation of the Seller Borrower hereunder shall be made free and clear of and without deduction or withholding for any Taxes, except as Indemnified Taxes provided that if the Borrower shall be required by applicable Law. If to deduct any applicable Law requires the deduction or withholding of any Tax Indemnified Taxes from any such payment by the Sellerpayments, then the Seller shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then (i) the sum payable by the Seller shall be increased as necessary so that after such deduction or withholding has been made making all required deductions (including such deductions and withholdings applicable to additional sums payable under this SectionClause 2.15) the applicable Affected Person recipient of such payment receives an amount equal to the sum it would have received had no such deduction or withholding deductions been made. In addition, (ii) the Borrower shall make such deductions, and (iii) the Borrower shall pay the full amount deducted to the relevant Official Body in accordance with applicable Law.
(b) The Borrower is not required to make an increased payment to a Lender under paragraph (a) above, if on the Seller date on which the payment falls due the payment could have been made to the relevant Lender without a deduction for Indemnified Taxes if it was a Qualifying Lender, but on that date that Lender is required not or has ceased to pay be a Qualifying Lender other than as a result of any Tax pursuant to paragraph 1(rchange in Law after the date it became a Lender under this Agreement.
(c) The Borrower shall indemnify each Indemnified Party within ten (10) days after written demand therefor, for the full amount of Exhibit IV that is (i) related any Indemnified Taxes paid by such Indemnified Party on or with respect to any payment by or on account of any obligation of the Seller Borrower hereunder (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Clause 2.15) and (ii) an Excluded Taxany penalties, the Seller shall be entitled interest and reasonable expenses arising therefrom or with respect thereto. A certificate as to deduct the amount of such Tax paid from payments hereunder payment or liability delivered to the Borrower by an Indemnified Party, or by the Seller. The Seller will indemnify each Affected Person against any Indemnified Taxes (i) imposed Administrative Agent on an Affected Person pursuant to its own behalf or on behalf of a payment made from the Seller with respect of such Affected Person’s Purchases or Reinvestments or (ii) which arise otherwise by reason of the executionLender, delivery, performance or enforcement of the Transaction Documentsshall be conclusive absent manifest error.
(bd) Each Affected Person will promptly notify the Seller in writing As soon as practicable after any payment of any event of which it has knowledge, which will entitle such Affected Person to compensation pursuant to this Section 3.3; provided, however, that failure of any Affected Person to demand indemnification for any Indemnified Taxes by the Borrower to an Official Body, the Borrower shall not constitute deliver to the applicable Person the original or a waiver certified copy of a receipt issued by such Official Body evidencing such payment, a copy of the return reporting such payment or other evidence of such right payment reasonably satisfactory to indemnification, except that the Seller shall not be required to indemnify an Affected Person for Taxes under this Section 3.3 unless such Affected Person notifies the Seller of such claim no later than 180 days after such Affected Person has knowledge of such Taxes being imposed or arising. Any notice claiming compensation under this Section 3.3 shall set forth in reasonable detail the additional amount or amounts to be paid to it hereunder and shall be conclusive in the absence of manifest error. The Seller shall be obligated to pay any claim for Indemnified Taxes within 10 days upon receipt of such written notice (other than Indemnified Taxes and expenses payable by reason of the action or inaction of the applicable Affected Person); provided that if the Seller reasonably believes that such Taxes were not correctly or legally asserted, the Affected Person will use reasonable efforts to cooperate with the Seller to obtain a refund of such Taxes (which shall be paid in accordance with Section 3.3(c)) so long as such efforts would not, in the sole determination of the Affected Person, result in any additional costs or expenses or be otherwise disadvantageous to the Affected Person.
(ce) If Any Foreign Lender that is entitled to an Affected Person determinesexemption from or reduction of withholding Tax under the law of the jurisdiction in which the Borrower is located, in its sole discretion, exercised in good faith, that it has received a refund of or any Taxes as treaty to which it has been indemnified by the Sellersuch jurisdiction is a party, it shall pay over such refund to the Seller (but only to the extent of indemnity payments made, or additional amounts paid, by the Seller under this Section 3.3 with respect to payments under this Agreement shall deliver to the Taxes giving rise Borrower (with a copy to the Administrative Agent) and file with the appropriate Official Body (if required), at the time or times prescribed by applicable Law, such properly completed and executed documentation prescribed by applicable Law or reasonably requested by the Borrower as will permit such payments to be made without withholding or at a reduced rate.
(f) If the Borrower makes a payment to an Indemnified Party under this Clause 2.15 and the relevant Indemnified Party determines that:
(i) a Tax Credit is attributable to such refund)payment; and
(ii) that Indemnified Party has obtained, net of all out-of-pocket expenses of such Affected Person utilised and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund net of any applicable Taxes payable in respect of such interest); providedretained that Tax Credit, that the Seller agrees to repay each such Affected Person, promptly after the request of such Affected Person, the Indemnified Party shall pay an amount paid over to the Seller Borrower which that Indemnified Party determines will leave it (plus any penalties, interest or other charges imposed by the relevant Governmental Authorityafter that payment) in the event such Affected Person is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary, in no event will any Affected Person be required to pay any amount to the Seller the payment of which would place such Affected Person in a less favorable net same after-Tax position than such Affected Person as it would have been in if had the Taxes subject to indemnification and giving rise to such refund had payment not been deductedrequired to be made by the Borrower. For the purpose of this Clause 2.15(f) “Tax Credit” means a credit against, withheld relief on remission for, or otherwise imposed and the indemnification payments or additional amounts with respect to such Taxes had never been paidrepayment of, any tax. This Section 3.3(c) Clause 2.15 shall not be construed to require any Affected Person Indemnified Party to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the Seller Borrower or any other Person.
(d) Each Affected Person agrees that it will use reasonable efforts to reduce or eliminate any claim for indemnity pursuant to this Section 3.3 or compensation pursuant to Section 1.7 including, subject to applicable Law, a change in the funding office of such Affected Person; provided, however, that nothing contained herein shall obligate any Affected Person to take any action that imposes on such Affected Person any unreimbursed additional costs or legal or regulatory burdens which such Affected Person reasonably considers material, nor which, in such Affected Person’s reasonable opinion, would have an adverse effect on its business, operations or financial condition.
(e) If any Affected Person requests compensation under Section 1.7, or if the Seller is required to pay any Indemnified Taxes or additional amounts to any Affected Person or any Governmental Authority for the account of any Affected Person pursuant to this Section 3.3 and, in each case, such Affected Person has declined or is unable to designate a different lending office in accordance with Section 3.3(d) above, then the Seller may, at its sole expense and effort, upon notice to such Affected Person and the Administrator, require such Affected Person to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 7.3), all of its interests, rights (other than its existing rights to payments pursuant to Section 1.7 or this Section 3.3) and obligations under this Agreement and the related Transaction Documents to a Person eligible to be a Purchasing Committed Purchaser under Section 7.3(b) that shall assume such obligations (which such Purchasing Committed Purchaser may be another Affected Person, if an Affected Person accepts such assignment); provided that:
(i) such Affected Person shall have received payment of an amount equal to the outstanding principal of its Commitment, accrued Discount thereon, accrued fees and all other amounts payable to it hereunder and under the other Transaction Documents from the assignee (to the extent of such outstanding principal and accrued Discount and fees) or the Seller (in the case of all other amounts);
(ii) in the case of any such assignment resulting from a claim for compensation under Section 1.7 or payments required to be made pursuant to this Section 3.3, such assignment will result in a reduction in such compensation or payments thereafter; and;
(iii) such assignment does not conflict with applicable Law. An Affected Person shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Affected Person or otherwise, the circumstances entitling the Seller to require such assignment and delegation cease to apply.
Appears in 1 contract
Indemnity for Taxes. (a) Any and all payments by or on account of any obligation of the Seller hereunder shall be made free and clear of and without deduction or withholding for any Indemnified Taxes or Other Taxes, except as required by applicable Law. If any applicable Law requires the deduction or withholding of any Tax from any such payment by the Seller, then ; provided that if the Seller shall be entitled required to make deduct any Indemnified Taxes or Other Taxes from such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Taxpayments, then (i) the sum payable by the Seller shall be increased as necessary so that after such deduction or withholding has been made making all required deductions (including such deductions and withholdings applicable to additional sums payable under this SectionSection 2.15) the applicable Affected Person recipient of such payment receives an amount equal to the sum it would have received had no such deduction or withholding deductions been made. , (ii) the Seller shall make such deductions, and (iii) the Seller shall pay the full amount deducted to the relevant Official Body in accordance with applicable Law.
(b) In addition, if the Seller is required to shall pay any Tax pursuant Other Taxes to paragraph 1(rthe relevant Official Body in accordance with applicable Law.
(c) The Seller shall indemnify each Indemnified Party within ten (10) days after written demand therefor, for the full amount of Exhibit IV that is (i) related any Indemnified Taxes or Other Taxes paid by such Indemnified Party on or with respect to the sale, assignment and transfer of the Portfolio Receivables under this Agreement, any Investment and any payment by or on account of any obligation of the Seller hereunder and (ii) an Excluded Tax, the Seller shall be entitled to deduct the amount or where payment of such Tax paid from payments hereunder by the Seller. The Seller will indemnify each Affected Person against any Indemnified Taxes (i) imposed on or Other Taxes is otherwise made by an Affected Person Indemnified Party pursuant to a payment made from the Seller or in connection with respect of such Affected Person’s Purchases or Reinvestments or this Agreement (ii) which arise otherwise by reason of the execution, delivery, performance or enforcement of the Transaction Documents.
(b) Each Affected Person will promptly notify the Seller in writing of any event of which it has knowledge, which will entitle such Affected Person to compensation pursuant to this Section 3.3; provided, however, that failure of any Affected Person to demand indemnification for any including Indemnified Taxes shall not constitute a waiver of such right or Other Taxes imposed or asserted on or attributable to indemnification, except that the Seller shall not be required to indemnify an Affected Person for Taxes amounts payable under this Section 3.3 unless such Affected Person notifies the Seller of such claim no later than 180 days after such Affected Person has knowledge of such Taxes being imposed or arising. Any notice claiming compensation under this Section 3.3 shall set forth in reasonable detail the additional amount or amounts to be paid to it hereunder 2.15) and shall be conclusive in the absence of manifest error. The Seller shall be obligated to pay any claim for Indemnified Taxes within 10 days upon receipt of such written notice (other than Indemnified Taxes and expenses payable by reason of the action or inaction of the applicable Affected Person); provided that if the Seller reasonably believes that such Taxes were not correctly or legally asserted, the Affected Person will use reasonable efforts to cooperate with the Seller to obtain a refund of such Taxes (which shall be paid in accordance with Section 3.3(c)) so long as such efforts would not, in the sole determination of the Affected Person, result in any additional costs or expenses or be otherwise disadvantageous to the Affected Person.
(c) If an Affected Person determines, in its sole discretion, exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by the Seller, it shall pay over such refund to the Seller (but only to the extent of indemnity payments made, or additional amounts paid, by the Seller under this Section 3.3 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of such Affected Person and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund net of any applicable Taxes payable in respect of such interest); provided, that the Seller agrees to repay each such Affected Person, promptly after the request of such Affected Person, the amount paid over to the Seller (plus any penalties, interest and reasonable expenses arising therefrom or other charges with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority) in the event such Affected Person is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary, in no event will any Affected Person be required to pay any amount to the Seller the payment of which would place such Affected Person in a less favorable net after-Tax position than such Affected Person would have been in if the Taxes subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Taxes had never been paid. This Section 3.3(c) shall not be construed to require any Affected Person to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the Seller or any other Person.
(d) Each Affected Person agrees that it will use reasonable efforts to reduce or eliminate any claim for indemnity pursuant to this Section 3.3 or compensation pursuant to Section 1.7 including, subject to applicable Law, a change in the funding office of such Affected Person; provided, however, that nothing contained herein shall obligate any Affected Person to take any action that imposes on such Affected Person any unreimbursed additional costs or legal or regulatory burdens which such Affected Person reasonably considers material, nor which, in such Affected Person’s reasonable opinion, would have an adverse effect on its business, operations or financial condition.
(e) If any Affected Person requests compensation under Section 1.7, or if the Seller is required to pay any Indemnified Taxes or additional amounts to any Affected Person or any Governmental Authority for the account of any Affected Person pursuant to this Section 3.3 and, in each case, such Affected Person has declined or is unable to designate a different lending office in accordance with Section 3.3(d) above, then the Seller may, at its sole expense and effort, upon notice to such Affected Person and the Administrator, require such Affected Person to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 7.3), all of its interests, rights Official Body (other than its existing rights to payments pursuant to Section 1.7 or this Section 3.3) and obligations under this Agreement and the related Transaction Documents to a Person eligible to be a Purchasing Committed Purchaser under Section 7.3(b) that shall assume such obligations (which such Purchasing Committed Purchaser may be another Affected Person, if an Affected Person accepts such assignment); provided that:
(i) such Affected Person shall have received payment of an amount equal to the outstanding principal of its Commitment, accrued Discount thereon, accrued fees and all other amounts payable to it hereunder and under the other Transaction Documents those resulting from the assignee (to the extent of such outstanding principal and accrued Discount and fees) Indemnified Party’s gross negligence, fraud or the Seller (in the case of all other amounts);
(ii) in the case of any such assignment resulting from a claim for compensation under Section 1.7 or payments required to be made pursuant to this Section 3.3, such assignment will result in a reduction in such compensation or payments thereafter; and;
(iii) such assignment does not conflict with applicable Law. An Affected Person shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Affected Person or otherwise, the circumstances entitling the Seller to require such assignment and delegation cease to apply.wilful
Appears in 1 contract
Samples: Securitization Agreement (Bungeltd)
Indemnity for Taxes. (a) Any and all payments by or on account of any obligation of the Seller hereunder shall be made without deduction or withholding for any Taxes, except as required by applicable Law. If any applicable Law requires the deduction or withholding of any Tax from any such payment by the Seller, then the Seller shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the Seller shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Affected Person receives an amount equal to the sum it would have received had no such deduction or withholding been made. In addition, if the Seller is required to pay any Tax pursuant to paragraph 1(r) of Exhibit IV that is (i) related to any payment by or on account of any obligation of the Seller hereunder and (ii) an Excluded Tax, the Seller shall be entitled to deduct the amount of such Tax paid from payments hereunder by the Seller. The Seller will indemnify each Affected Person against any Indemnified Taxes (i) imposed on an Affected Person pursuant to a payment made from the Seller with respect of such Affected Person’s Purchases or Reinvestments or (ii) which arise otherwise by reason of the execution, delivery, performance or enforcement of the Transaction Documents.
(b) Each Affected Person will promptly notify the Seller in writing of any event of which it has knowledge, which will entitle such Affected Person to compensation pursuant to this Section 3.3; provided, however, that failure of any Affected Person to demand indemnification for any Indemnified Taxes shall not constitute a waiver of such right to indemnification, except that the Seller shall not be required to indemnify an Affected Person for Taxes under this Section 3.3 unless such Affected Person notifies the Seller of such claim no later than 180 days after such Affected Person has knowledge of such Taxes being imposed or arising. Any notice claiming compensation under this Section 3.3 shall set forth in reasonable detail the additional amount or amounts to be paid to it hereunder and shall be conclusive in the absence of manifest error. The Seller shall be obligated to pay any claim for Indemnified Taxes within 10 days upon receipt of such written notice (other than Indemnified Taxes and expenses payable by reason of the action or inaction of the applicable Affected Person); provided that if the Seller reasonably believes that such Taxes were not correctly or legally asserted, the Affected Person will use reasonable efforts to cooperate with the Seller to obtain a refund of such Taxes (which shall be paid in accordance with Section 3.3(c)) so long as such efforts would not, in the sole determination of the Affected Person, result in any additional costs or expenses or be otherwise disadvantageous to the Affected Person.
(c) If an Affected Person determines, in its sole discretion, exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by the Seller, it shall pay over such refund to the Seller (but only to the extent of indemnity payments made, or additional amounts paid, by the Seller under this Section 3.3 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of such Affected Person and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund net of any applicable Taxes payable in respect of such interest); provided, that the Seller agrees to repay each such Affected Person, promptly after the request of such Affected Person, the amount paid over to the Seller (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such Affected Person is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary, in no event will any Affected Person be required to pay any amount to the Seller the payment of which would place such Affected Person in a less favorable net after-Tax position than such Affected Person would have been in if the Taxes subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Taxes had never been paid. This Section 3.3(c) shall not be construed to require any Affected Person to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the Seller or any other Person.
(d) Each Affected Person agrees that it will use reasonable efforts to reduce or eliminate any claim for indemnity pursuant to this Section 3.3 or compensation pursuant to Section 1.7 including, subject to applicable Law, a change in the funding office of such Affected Person; provided, however, that nothing contained herein shall obligate any Affected Person to take any action that imposes on such Affected Person any unreimbursed additional costs or legal or regulatory burdens which such Affected Person reasonably considers material, nor which, in such Affected Person’s reasonable opinion, would have an adverse effect on its business, operations or financial condition.
(e) If any Affected Person requests compensation under Section 1.7, or if the Seller is required to pay any Indemnified Taxes or additional amounts to any Affected Person or any Governmental Authority for the account of any Affected Person pursuant to this Section 3.3 and, in each case, such Affected Person has declined or is unable to designate a different lending office in accordance with Section 3.3(d) above, then the Seller may, at its sole expense and effort, upon notice to such Affected Person and the Administrator, require such Affected Person to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 7.3), all of its interests, rights (other than its existing rights to payments pursuant to Section 1.7 or this Section 3.3) and obligations under this Agreement and the related Transaction Documents to a Person eligible to be a Purchasing Committed Purchaser under Section 7.3(b) that shall assume such obligations (which such Purchasing Committed Purchaser may be another Affected Person, if an Affected Person accepts such assignment); provided that:
(i) such Affected Person shall have received payment of an amount equal to the outstanding principal of its Commitment, accrued Discount thereon, accrued fees and all other amounts payable to it hereunder and under the other Transaction Documents from the assignee (to the extent of such outstanding principal and accrued Discount and fees) or the Seller (in the case of all other amounts);
(ii) in the case of any such assignment resulting from a claim for compensation under Section 1.7 or payments required to be made pursuant to this Section 3.3, such assignment will result in a reduction in such compensation or payments thereafter; and;
(iii) such assignment does not conflict with applicable Law. An Affected Person shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Affected Person or otherwise, the circumstances entitling the Seller to require such assignment and delegation cease to apply.to
Appears in 1 contract
Samples: Receivables Purchase Agreement (Vistra Energy Corp.)
Indemnity for Taxes. (a) Any and all payments by or on account of any obligation of the Seller hereunder Borrower under this Agreement and each Note shall be made without setoff, counterclaim or other defense, and free and clear of, and without deduction or withholding for or on account of, any Taxes, except as to the extent such Taxes are imposed by law. In the event that any Taxes are imposed and required by applicable Law. If any applicable Law requires the deduction law to be deducted or withholding of any Tax withheld from any payment required to be made by Borrower to or on behalf of the Administrative Agent or any Lender hereunder then: (i) subject to clause (f) below, if such Taxes are Indemnified Taxes, the amount of such payment by the Seller, then the Seller shall be entitled to make increased as may be necessary such that such payment is made, after withholding or deduction for or withholding on account of such Taxes, in an amount that is not less than the amount provided for herein; and (ii) Borrower shall timely pay withhold the full amount deducted or withheld of such Taxes from such payment (as increased pursuant to clause (a)(i)) and shall pay such amount to the relevant Governmental Authority Official Body imposing such Taxes in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the Seller shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Affected Person receives an amount equal to the sum it would have received had no such deduction or withholding been made. In addition, if the Seller is required to pay any Tax pursuant to paragraph 1(r) of Exhibit IV that is (i) related to any payment by or on account of any obligation of the Seller hereunder and (ii) an Excluded Tax, the Seller shall be entitled to deduct the amount of such Tax paid from payments hereunder by the Seller. The Seller will indemnify each Affected Person against any Indemnified Taxes (i) imposed on an Affected Person pursuant to a payment made from the Seller with respect of such Affected Person’s Purchases or Reinvestments or (ii) which arise otherwise by reason of the execution, delivery, performance or enforcement of the Transaction Documentslaw.
(b) Each Affected Person will In addition, Borrower shall pay any and all Other Taxes imposed to the relevant Official Body imposing such Other Taxes in accordance with applicable law.
(c) As promptly notify as practicable after the Seller in writing payment of any event Taxes or Other Taxes, Borrower shall furnish to the Administrative Agent a copy of which it has knowledgean official receipt (or a certified copy thereof) evidencing the payment of such Taxes or Other Taxes. The Administrative Agent shall make copies thereof available to any Lender upon request therefor.
(d) Subject to clause (f), which will entitle Borrower shall indemnify the Administrative Agent and each Lender for any Indemnified Taxes and Other Taxes levied, imposed or assessed on (and whether or not paid directly by) the Administrative Agent or such Affected Person Lender (and whether or not such Indemnified Taxes or Other Taxes are correctly or legally asserted by the relevant Official Body). Promptly upon having knowledge that any such Indemnified Taxes or Other Taxes have been levied, imposed or assessed, and promptly upon notice thereof by the Administrative Agent or any Lender, Borrower shall pay such Indemnified Taxes or Other Taxes directly to compensation pursuant to this Section 3.3; the relevant Official Body (provided, however, that neither the Administrative Agent nor any Lender shall be under any obligation to provide any such notice to Borrower). In addition, Borrower shall indemnify the Administrative Agent and each Lender for any incremental Indemnified Taxes and Other Taxes that may become payable by the Administrative Agent or any Lender as a result of any failure of any Affected Person to demand indemnification for any Indemnified Taxes shall not constitute a waiver of such right to indemnification, except that the Seller shall not be required to indemnify an Affected Person for Taxes under this Section 3.3 unless such Affected Person notifies the Seller of such claim no later than 180 days after such Affected Person has knowledge of such Taxes being imposed or arising. Any notice claiming compensation under this Section 3.3 shall set forth in reasonable detail the additional amount or amounts to be paid to it hereunder and shall be conclusive in the absence of manifest error. The Seller shall be obligated Borrower to pay any claim Taxes when due to the appropriate Official Body or to deliver to the Administrative Agent, pursuant to clause (c), documentation evidencing the payment of Taxes or Other Taxes. With respect to indemnification for Indemnified Taxes within 10 days upon receipt of such written notice (other than Indemnified and Other Taxes and expenses payable by reason of the action or inaction of the applicable Affected Person); provided that if the Seller reasonably believes that such Taxes were not correctly or legally asserted, the Affected Person will use reasonable efforts to cooperate with the Seller to obtain a refund of such Taxes (which shall be paid in accordance with Section 3.3(c)) so long as such efforts would not, in the sole determination of the Affected Person, result in any additional costs or expenses or be otherwise disadvantageous to the Affected Person.
(c) If an Affected Person determines, in its sole discretion, exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by the Seller, it shall pay over such refund to the Seller (but only to the extent of indemnity payments made, or additional amounts paid, by the Seller under this Section 3.3 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of such Affected Person and without interest (other than any interest actually paid by the relevant Governmental Authority with respect Administrative Agent or any Lender or the indemnification provided in the immediately preceding sentence, such indemnification shall be made within 30 days after the date the Administrative Agent or such Lender, as the case may be, makes written demand therefor. Borrower acknowledges that any payment made to such refund net of the Administrative Agent or any applicable Taxes payable Lender or to any Official Body in respect of such interest); provided, that the Seller agrees to repay each such Affected Person, promptly after the request indemnification obligations of such Affected Person, the amount paid over to the Seller (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) Borrower provided in the event such Affected Person is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary, this clause shall constitute a payment in no event will any Affected Person be required to pay any amount to the Seller the payment respect of which would place such Affected Person in a less favorable net after-Tax position than such Affected Person would have been in if the Taxes subject to indemnification provisions of clause (a) and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Taxes had never been paid. This Section 3.3(c) this clause shall not be construed to require any Affected Person to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the Seller or any other Person.
(d) Each Affected Person agrees that it will use reasonable efforts to reduce or eliminate any claim for indemnity pursuant to this Section 3.3 or compensation pursuant to Section 1.7 including, subject to applicable Law, a change in the funding office of such Affected Person; provided, however, that nothing contained herein shall obligate any Affected Person to take any action that imposes on such Affected Person any unreimbursed additional costs or legal or regulatory burdens which such Affected Person reasonably considers material, nor which, in such Affected Person’s reasonable opinion, would have an adverse effect on its business, operations or financial conditionapply.
(e) If any Affected Person requests compensation under Section 1.7Each Foreign Lender, on or if prior to the Seller date on which such Foreign Lender becomes a Lender hereunder (and from time to time thereafter upon the request of Borrower or the Administrative Agent, but only for so long as such non-U.S. Lender is required legally entitled to pay any Indemnified Taxes or additional amounts do so), shall deliver to any Affected Person or any Governmental Authority for the account of any Affected Person pursuant to this Section 3.3 and, in each case, such Affected Person has declined or is unable to designate a different lending office in accordance with Section 3.3(d) above, then the Seller may, at its sole expense and effort, upon notice to such Affected Person Borrower and the Administrator, require such Affected Person to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 7.3), all of its interests, rights (other than its existing rights to payments pursuant to Section 1.7 or this Section 3.3) and obligations under this Agreement and the related Transaction Documents to a Person eligible to be a Purchasing Committed Purchaser under Section 7.3(b) that shall assume such obligations (which such Purchasing Committed Purchaser may be another Affected Person, if an Affected Person accepts such assignment); provided that:
Administrative Agent either: (i) such Affected Person shall have received payment two duly completed copies of either (x) Internal Revenue Service Form W-8BEN claiming eligibility of the Foreign Lender for benefits of an amount equal income tax treaty to which the outstanding principal of its CommitmentUnited States is a party or (y) Internal Revenue Service Form W-8ECI, accrued Discount thereon, accrued fees and all other amounts payable to it hereunder and under the other Transaction Documents from the assignee (to the extent of such outstanding principal and accrued Discount and fees) or the Seller (in the either case of all other amounts);
an applicable successor form; or (ii) in the case of any a Foreign Lender that is not legally entitled to deliver either form listed in clause (e)(i), (x) a certificate of a duly authorized officer of such assignment resulting Foreign Lender to the effect that such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the IRC, (B) a “10 percent shareholder” of Borrower within the meaning of Section 881(c)(3)(B) of the IRC, or (C) a controlled foreign corporation receiving interest from a claim for compensation under related Person within the meaning of Section 1.7 881(c)(3)(C) of the IRC (such certificate, an “Exemption Certificate”) and (y) two duly completed copies of Internal Revenue Service Form W-8BEN or payments required to be made pursuant to this Section 3.3, such assignment will result in a reduction in such compensation or payments thereafter; and;applicable successor form.
(iiif) such assignment does not conflict with applicable Law. An Affected Person Borrower shall not be required obligated to make pay any such assignment additional amounts to any Lender pursuant to clause (a)(i), or delegation ifto indemnify any Lender pursuant to clause (d), prior thereto, in respect of United States federal withholding taxes to the extent imposed as a result of (i) the failure of such Lender to deliver to Borrower the form or forms and/or an Exemption Certificate, as applicable to such Lender, pursuant to clause (e), (ii) such form or forms and/or Exemption Certificate not establishing a waiver complete exemption from U.S. federal withholding tax or the information or certifications made therein by the Lender being untrue or inaccurate on the date delivered in any material respect, or (iii) the Lender designating a successor lending office at which it maintains its Loans which has the effect of causing such Affected Person Lender to become obligated for tax payments in excess of those in effect immediately prior to such designation; provided, however, that Borrower shall be obligated to pay additional amounts to any such Lender pursuant to clause (a)(i), and to indemnify any such Lender pursuant to clause (d), in respect United States federal withholding taxes if (i) any such failure to deliver a form or otherwiseforms or an Exemption Certificate or the failure of such form or forms or Exemption Certificate to establish a complete exemption from U.S. federal withholding tax or inaccuracy or untruth contained therein resulted from a change in any applicable statute, treaty, regulation or other applicable law or any interpretation of any of the circumstances entitling foregoing occurring after the Seller date such Lender becomes a Lender hereunder, which change rendered such Lender no longer legally entitled to require deliver such form or forms or Exemption Certificate or otherwise ineligible for a complete exemption from U.S. federal withholding tax, or rendered the information or certifications made in such form or forms or Exemption Certificate untrue or inaccurate in a material respect, (ii) the redesignation of the Lender’s lending office was made at the request of Borrower or (iii) the obligation to pay any additional amounts to any such Lender pursuant to clause (a)(i) or to indemnify any such Lender pursuant to clause (d) is with respect to a Lender that becomes a Lender as a result of an assignment and delegation cease to applymade at the request of Borrower.
Appears in 1 contract
Indemnity for Taxes. (a) Any and all payments by or on account of any obligation of the Seller hereunder under any Transaction Document shall be made without deduction or withholding for any Taxes, except as required by applicable Lawlaw. If any applicable Law law (as determined in the good faith discretion of the Seller) requires the deduction or withholding of any Tax from any such payment by the Seller, then the Seller shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the Seller shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this SectionSection 10.02) the applicable Affected Person Indemnified Party receives an amount equal to the sum it would have received had no such deduction or withholding been made. In addition, if the Seller is required to pay any Tax pursuant to paragraph 1(r) of Exhibit IV that is (i) related to any payment by or on account of any obligation of the Seller hereunder and (ii) an Excluded Tax, the Seller shall be entitled to deduct the amount of such Tax paid from payments hereunder by the Seller. The Seller will indemnify each Affected Person against any Indemnified Taxes (i) imposed on an Affected Person pursuant to a payment made from the Seller with respect of such Affected Person’s Purchases or Reinvestments or (ii) which arise otherwise by reason of the execution, delivery, performance or enforcement of the Transaction Documents.
(b) Each Affected Person The Seller shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the written request of the applicable Indemnified Party timely reimburse it for the payment of, any Other Taxes.
(c) The Seller shall indemnify each Indemnified Party, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 10.02) payable or paid by such Indemnified Party or required to be withheld or deducted from a payment to such Indemnified Party and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The Administrative Agent, the Co-Administrative Agent and each Facility Agent will promptly notify the Seller in writing of any event of which it has knowledge, which will entitle such Affected it or any Person in its Purchase Group to compensation pursuant to this Section 3.310.02; provided, however, that failure of any Affected Person Indemnified Party to demand indemnification for any Indemnified Taxes shall not constitute a waiver of such right to indemnification, except that the Seller shall not be required to indemnify an Affected Person Indemnified Party for Taxes under this Section 3.3 10.02 unless such Affected Person Indemnified Party notifies the Seller of such claim no later than 180 days after such Affected Person Indemnified Party has knowledge of such Taxes being imposed or arising. Any notice claiming compensation under this Section 3.3 10.02 shall set forth in reasonable detail the additional amount or amounts to be paid to it hereunder and shall be conclusive in the absence of manifest error. The Absent manifest error, the Seller shall be obligated to pay any claim for Indemnified Taxes within 10 days tax indemnity promptly upon receipt of such written notice (other than Indemnified Taxes and expenses payable by reason of the action or inaction of the applicable Affected Person); provided that if the Seller reasonably believes that such Taxes were not correctly or legally asserted, the Affected Person will use reasonable efforts to cooperate with the Seller to obtain a refund of such Taxes (which shall be paid in accordance with Section 3.3(c)) so long as such efforts would not, in the sole determination of the Affected Person, result in any additional costs or expenses or be otherwise disadvantageous to the Affected Person.
(c) If an Affected Person determines, in its sole discretion, exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by the Seller, it shall pay over such refund to the Seller (but only to the extent of indemnity payments made, or additional amounts paid, by the Seller under this Section 3.3 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of such Affected Person and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund net of any applicable Taxes payable in respect of such interest); provided, that the Seller agrees to repay each such Affected Person, promptly after the request of such Affected Person, the amount paid over to the Seller (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such Affected Person is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary, in no event will any Affected Person be required to pay any amount to the Seller the payment of which would place such Affected Person in a less favorable net after-Tax position than such Affected Person would have been in if the Taxes subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Taxes had never been paid. This Section 3.3(c) shall not be construed to require any Affected Person to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the Seller or any other Personnotice.
(d) Each Affected Person Indemnified Party agrees that it will use reasonable efforts to reduce or eliminate any claim for indemnity pursuant to this Section 3.3 or compensation pursuant to Section 1.7 10.02 including, subject to applicable Law, a change in the funding office of such Affected PersonIndemnified Party; provided, however, that nothing contained herein shall obligate any Affected Person Indemnified Party to take any action that imposes on such Affected Person Indemnified Party any unreimbursed additional costs (without reimbursement) or imposes legal or regulatory burdens which such Affected Person Indemnified Party reasonably considers material, nor which, in such Affected PersonIndemnified Party’s reasonable opinion, would have an adverse effect on its business, operations or financial condition.
(e) If any Affected Person requests compensation under Section 1.7, or if the Seller is required to pay any Indemnified Taxes or additional amounts to any Affected Person or any Governmental Authority for the account of any Affected Person pursuant to this Section 3.3 and, in each case, such Affected Person has declined or is unable to designate a different lending office in accordance with Section 3.3(d) above, then the Seller may, at its sole expense and effort, upon notice to such Affected Person and the Administrator, require such Affected Person to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 7.3), all of its interests, rights (other than its existing rights to payments pursuant to Section 1.7 or this Section 3.3) and obligations under this Agreement and the related Transaction Documents to a Person eligible to be a Purchasing Committed Purchaser under Section 7.3(b) that shall assume such obligations (which such Purchasing Committed Purchaser may be another Affected Person, if an Affected Person accepts such assignment); provided that:
(i) such Affected Person shall have received payment of an amount equal to the outstanding principal of its Commitment, accrued Discount thereon, accrued fees and all other amounts payable to it hereunder and under the other Transaction Documents from the assignee (to the extent of such outstanding principal and accrued Discount and fees) or the Seller (in the case of all other amounts);
(ii) in the case of any such assignment resulting from a claim for compensation under Section 1.7 or payments required to be made pursuant to this Section 3.3, such assignment will result in a reduction in such compensation or payments thereafter; and;
(iii) such assignment does not conflict with applicable Law. An Affected Person shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Affected Person or otherwise, the circumstances entitling the Seller to require such assignment and delegation cease to apply.
Appears in 1 contract
Indemnity for Taxes. (a) Any and all payments by or on account of any obligation of the Seller hereunder shall be made without deduction or withholding for any Taxes, except as required by applicable Law. If any applicable Law requires the deduction or withholding of any Tax from any such payment by the Seller, then the Seller shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the Seller shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Affected Person receives an amount equal to the sum it would have received had no such deduction or withholding been made. In addition, if the Seller is required to pay any Tax pursuant to paragraph 1(r) of Exhibit IV that is (i) related to any payment by or on account of any obligation of the Seller hereunder and (ii) an Excluded Tax, the Seller shall be entitled to deduct the amount of such Tax paid from payments hereunder by the Seller. The Seller will indemnify each Affected Person against any Indemnified Taxes (iincluding Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) imposed on an payable or paid by such Affected Person pursuant or required to be withheld or deducted from a payment made to such Affected Person and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The Seller shall timely pay to the relevant Governmental Authority in accordance with applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes. The Seller shall indemnify each Affected Person for any Taxes resulting from the Seller with respect of such Affected Person’s Purchases transactions contemplated hereunder treated by any Governmental Authority differently than the tax treatment set forth in Section 7.7 (including any expenses or Reinvestments or (ii) which arise otherwise by reason of the execution, delivery, performance or enforcement of the Transaction Documentsattorney fees related thereto).
(b) Each Affected Person will promptly notify the Seller in writing of any event of which it has knowledge, which knowledge that will entitle such Affected Person to compensation pursuant to this Section 3.3; provided, however, that failure of any Affected Person to demand indemnification for any Indemnified Taxes shall not constitute a waiver of such right to indemnification, except that the Seller shall not be required to indemnify an Affected Person for Taxes under this Section 3.3 unless such Affected Person notifies the Seller of such claim no later than 180 days after such Affected Person has knowledge of such Taxes being imposed or arising. Any notice claiming compensation under this Section 3.3 shall set forth in reasonable detail the additional amount or amounts to be paid to it hereunder and shall be conclusive in the absence of manifest error. The Seller shall be obligated to pay any claim for Indemnified Taxes within 10 days upon receipt of such written notice (other than Indemnified Taxes and expenses payable by reason of the action or inaction of the applicable Affected Person); provided that if the Seller reasonably believes that such Taxes were not correctly or legally asserted, the Affected Person will use reasonable efforts to cooperate with the Seller to obtain a refund of such Taxes (which shall be paid in accordance with Section 3.3(c)) so long as such efforts would not, in the sole determination of the Affected Person, result in any additional costs or expenses or be otherwise disadvantageous to the Affected Personnotice.
(c) If an Affected Person determines, in its sole discretion, exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by the Seller, it shall pay over such refund to the Seller (but only to the extent of indemnity payments made, or additional amounts paid, by the Seller under this Section 3.3 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of such Affected Person and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund net of any applicable Taxes payable in respect of such interest); provided, that the Seller agrees to repay each such Affected Person, promptly after the request of such Affected Person, the amount paid over to the Seller (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such Affected Person is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary, in no event will any Affected Person be required to pay any amount to the Seller the payment of which would place such Affected Person in a less favorable net after-Tax position than such Affected Person would have been in if the Taxes subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Taxes had never been paid. This Section 3.3(c) shall not be construed to require any Affected Person to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the Seller or any other Person.
(d) Each Affected Person agrees that it will use reasonable efforts to reduce or eliminate any claim for indemnity pursuant to this Section 3.3 or compensation pursuant to Section 1.7 including, subject to applicable Law, a change in the funding office of such Affected Person; provided, however, that nothing contained herein shall obligate any Affected Person to take any action that imposes on such Affected Person any unreimbursed additional costs or legal or regulatory burdens which such Affected Person reasonably considers material, nor which, in such Affected Person’s reasonable opinion, would have an adverse effect on its business, operations or financial condition.
(d) As soon as practicable after any payment of Taxes by the Seller to a Governmental Authority pursuant to this Section, the Seller shall deliver to the Administrative Agent (i) a copy of a receipt issued by such Governmental Authority evidencing any material payment of Taxes by the Seller (or other applicable taxpayer) to a Governmental Authority pursuant to this Section, (ii) a copy of the return reporting such payment or (iii) other evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) If any Affected Person requests compensation under determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 1.7(including by the payment of additional amounts pursuant to this Section), or if it shall pay to the Seller an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Affected Person and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). The Seller, upon the request of such Affected Person, shall repay to such Affected Person the amount paid over pursuant to this paragraph (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Affected Person is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (e), in no event will any Affected Person be required to pay any Indemnified Taxes amount to the Seller pursuant to this paragraph (e) the payment of which would place such Affected Person in a less favorable net after-Tax position than such Affected Person would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any Affected Person to make available its Tax returns (or any Governmental Authority for the account of any Affected Person pursuant other information relating to this Section 3.3 and, in each case, such Affected Person has declined or is unable its Taxes that it deems confidential) to designate a different lending office in accordance with Section 3.3(d) above, then the Seller may, at its sole expense and effort, upon notice to such Affected Person and the Administrator, require such Affected Person to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 7.3), all of its interests, rights (or any other than its existing rights to payments pursuant to Section 1.7 or this Section 3.3) and obligations under this Agreement and the related Transaction Documents to a Person eligible to be a Purchasing Committed Purchaser under Section 7.3(b) that shall assume such obligations (which such Purchasing Committed Purchaser may be another Affected Person, if an Affected Person accepts such assignment); provided that:
(i) such Affected Person shall have received payment of an amount equal to the outstanding principal of its Commitment, accrued Discount thereon, accrued fees and all other amounts payable to it hereunder and under the other Transaction Documents from the assignee (to the extent of such outstanding principal and accrued Discount and fees) or the Seller (in the case of all other amounts);
(ii) in the case of any such assignment resulting from a claim for compensation under Section 1.7 or payments required to be made pursuant to this Section 3.3, such assignment will result in a reduction in such compensation or payments thereafter; and;
(iii) such assignment does not conflict with applicable Law. An Affected Person shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Affected Person or otherwise, the circumstances entitling the Seller to require such assignment and delegation cease to apply.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Covanta Holding Corp)
Indemnity for Taxes. (a) Any and all All payments made by the Borrower to the Lenders under this Agreement or on account of any obligation of the Seller hereunder other Transaction Document shall be made free and clear of, and without deduction or withholding for or on account of, any Taxespresent or future stamp or similar taxes, except as levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority unless otherwise required by applicable Law. If any applicable Law law requires the a deduction or withholding of any Tax from any such payment made by the SellerBorrower (or its agent or the Paying Agent), then the Seller Borrower (or its agent or the Paying Agent) shall be entitled to make such deduction or withholding withholding. If any such taxes (other than Excluded Taxes) are required to be withheld from any amounts payable to any Lender hereunder, the amounts so payable by the Borrower to such Lender shall be increased to the extent necessary to yield to such Lender (after payment of all Taxes) all amounts payable hereunder at the rates or in the amounts specified in this Agreement and the other Transaction Documents. The Borrower shall timely pay indemnify each Lender for the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the Seller shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Affected Person receives an amount equal to the sum it would have received had no such deduction or withholding been made. In addition, if the Seller is required to pay any Tax pursuant to paragraph 1(r) of Exhibit IV that is (i) related to any payment by or on account of any obligation such taxes (other than Excluded Taxes) that are assessed or imposed directly on such Lender on the first Payment Date which is not less than ten (10) days after the date of the Seller hereunder and (ii) an Excluded Tax, the Seller shall be entitled to deduct the amount of written demand therefor by such Tax paid from payments hereunder by the Seller. The Seller will indemnify each Affected Person against any Indemnified Taxes (i) imposed on an Affected Person pursuant to a payment made from the Seller with respect of such Affected Person’s Purchases or Reinvestments or (ii) which arise otherwise by reason of the execution, delivery, performance or enforcement of the Transaction DocumentsLender.
(b) Each Affected Person will promptly notify the Seller in writing of If at any event of which it has knowledgetime, which will entitle such Affected Person to compensation pursuant to this Section 3.3; provided, however, that failure of any Affected Person to demand indemnification for any Indemnified Taxes shall not constitute Lender is or becomes a waiver of such right to indemnification, except that the Seller shall not be required to indemnify an Affected Person for Taxes under this Section 3.3 unless such Affected Person notifies the Seller of such claim no later than 180 days after such Affected Person has knowledge of such Taxes being imposed or arising. Any notice claiming compensation under this Section 3.3 shall set forth in reasonable detail the additional amount or amounts to be paid to it hereunder and shall be conclusive in the absence of manifest error. The Seller shall be obligated to pay any claim for Indemnified Taxes within 10 days upon receipt of such written notice (other than Indemnified Taxes and expenses payable by reason of the action or inaction of the applicable Affected Person); provided that if the Seller reasonably believes that such Taxes were not correctly or legally asserted, the Affected Person will use reasonable efforts to cooperate with the Seller to obtain a refund of such Taxes (which shall be paid in accordance with Section 3.3(c)) so long as such efforts would not, in the sole determination of the Affected Non-United States Person, result in any additional costs or expenses or be otherwise disadvantageous to the Affected Person.
(c) If an Affected Person determines, in its sole discretion, exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by the Seller, it shall pay over such refund to the Seller (but only to the extent of indemnity payments made, or additional amounts paid, by the Seller under this Section 3.3 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of such Affected Person and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund net of any applicable Taxes payable in respect of such interest); provided, that the Seller agrees to repay each such Affected Person, promptly after the request of such Affected Person, the amount paid over to the Seller (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such Affected Person is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary, in no event will any Affected Person be required to pay any amount to the Seller the payment of which would place such Affected Person in a less favorable net after-Tax position than such Affected Person would have been in if the Taxes subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Taxes had never been paid. This Section 3.3(c) shall not be construed to require any Affected Person to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the Seller or any other Person.
(d) Each Affected Person agrees that it will use reasonable efforts to reduce or eliminate any claim for indemnity pursuant to this Section 3.3 or compensation pursuant to Section 1.7 including, subject to applicable Law, a change in the funding office of such Affected Person; provided, however, that nothing contained herein shall obligate any Affected Person to take any action that imposes on such Affected Person any unreimbursed additional costs or legal or regulatory burdens which such Affected Person reasonably considers material, nor which, in such Affected Person’s reasonable opinion, would have an adverse effect on its business, operations or financial condition.
(e) If any Affected Person requests compensation under Section 1.7, or if the Seller is required to pay any Indemnified Taxes or additional amounts to any Affected Person or any Governmental Authority for the account of any Affected Person pursuant to this Section 3.3 and, in each case, such Affected Person has declined or is unable to designate a different lending office in accordance with Section 3.3(d) above, then the Seller may, at its sole expense and effort, upon notice to such Affected Person and the Administrator, require such Affected Person to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 7.3), all of its interests, rights (other than its existing rights to payments pursuant to Section 1.7 or this Section 3.3) and obligations under this Agreement and the related Transaction Documents to a Person eligible to be a Purchasing Committed Purchaser under Section 7.3(b) that shall assume such obligations (which such Purchasing Committed Purchaser may be another Affected Person, if an Affected Person accepts such assignment); provided thatLender shall:
(i) such Affected Person shall have received payment of an amount equal deliver to the outstanding principal Borrower and the Paying Agent two duly completed copies of its CommitmentIRS Form W-8BEN, accrued Discount thereonForm W-8BEN-E, accrued fees and all other amounts payable to it hereunder and under the other Transaction Documents from the assignee (to the extent of such outstanding principal and accrued Discount and fees) Form W-8IMY or the Seller (in Form W-8ECI, or successor applicable form, as the case of all other amountsmay be (including any required attachments);
(ii) in deliver to the case Borrower and the Paying Agent two (2) further copies of any such assignment resulting from form or certification on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a claim for compensation under Section 1.7 or payments required to be made pursuant to this Section 3.3, such assignment will result change in a reduction in such compensation or payments thereafterthe most recent form previously delivered by it; and;
(iii) obtain such assignment does not conflict with extensions of time for filing and complete such forms or certifications as may reasonably be requested by the Borrower or the Paying Agent; unless such Lender is legally unable to prepare and/or deliver any such form or documentation, and such IRS Form W-8BEN, Form W-8BEN-E, Form W-8IMY or Form W-8ECI (or successor applicable Law. An Affected Person form) shall not be indicate that such Lender is entitled to receive payments under this Agreement and the other Transaction Documents without or at a reduced rate of deduction or withholding of any United States federal income taxes or permit the Borrower to determine the withholding or deduction required to make be made. Each Lender, to the extent that it is a Non-United States Person, agrees that, to the extent any form claiming complete or partial exemption from withholding and deduction of United States federal taxes delivered under this clause (b) is found to be incomplete or incorrect in any material respect, such assignment or delegation if, prior thereto, as a result Lender shall (to the extent it is permitted to do so under the laws and any double taxation treaties of a waiver by such Affected Person or otherwisethe United States, the circumstances entitling jurisdiction of its organization and the Seller jurisdictions in which its relevant booking offices are located) execute and deliver to require such assignment the Borrower a complete and delegation cease to applycorrect replacement form.
Appears in 1 contract
Samples: Loan and Security Agreement (Oportun Financial Corp)
