Net Payments; Taxes. (a) All payments made by any Credit Party hereunder or under any other Credit Document will be made without setoff, counterclaim or other defense. Except as provided in Section 5.04(b), all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (i) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed (in lieu of net income taxes), by the jurisdiction (or any political subdivision or taxing authority thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (ii) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the principal office or applicable lending office of the Administrative Agent or the Lender, as the case may be, is located, and (iii) in the case of a Non-US Lender, any withholding tax that is imposed on amounts payable to such Non-US Lender at the time such Non-US Lender designates a new lending office or is attributable to such Non-US Lender’s failure to comply with Section 5.04(b), except to the extent that such Non-US Lender was entitled at the time of the designation of the new lending office to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 5.04(a) (collectively, the “Excluded Taxes”)), and all interest, penalties or similar liabilities with respect to such non-Excluded Taxes, levies, imposts, duties, fees, assessments or other charges (all such non-Excluded Taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”). If any Taxes are required to be deducted or withheld, the Borrower agrees to pay the full amount of such Taxes, and such additional amounts as may be necessary so that every payment under this Agreement or under any Note, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Note. The Borrower will furnish to the Administrative Agent as soon as practicable after the date the payment of any Taxes is due pursuant to applicable law certified copies of tax receipts or other evidence of such payment reasonably acceptable to the Administrative Agent. The Borrower agrees to indemnify and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Taxes so levied or imposed and paid by such Lender; provided that, no Lender shall be indemnified for any Taxes hereunder unless such Lender shall make written demand on the Borrower for reimbursement hereunder no later than 180 days after the earlier of (i) the date on which such Lender makes payment of such Taxes and (ii) the date on which the relevant jurisdiction or any political subdivision or taxing authority thereof makes initial written demand upon such Lender for payment of such Taxes. (b) Each Lender agrees to use reasonable efforts (consistent with the legal and regulatory restrictions and subject to overall policy considerations of such Lender) to file any certificate or document or to furnish to the Borrower any information, in each case, as reasonably requested by the Borrower that may be necessary to establish any available exemption from, or reduction in the amount of, any Taxes; provided, however, that nothing in this Section 5.04(b) shall require a Lender to disclose any confidential information (including, without limitation, its tax returns or its calculations). (c) If the Administrative Agent or a Lender determines, in its sole discretion, that it has received a refund of any Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 5.04, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant jurisdiction or any political subdivision or taxing authority thereof with respect to such refund), provided, however, that (i) the Administrative Agent or Lender, as the case may be, may determine, in its sole discretion consistent with the policies of the Administrative Agent or Lender, as the case may be, whether to seek a refund; and (ii) the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant jurisdiction or any political subdivision or taxing authority thereof) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such jurisdiction or any political subdivision or taxing authority thereof. This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information that it deems confidential) to the Borrower or any other Person.
Appears in 3 contracts
Samples: Priority Credit Agreement (Trico Marine Services Inc), Credit Agreement and Forbearance Agreement (Trico Marine Services Inc), Credit Agreement (Trico Marine Services Inc)
Net Payments; Taxes. (ai) All payments made by any Credit Party the Borrowers and the other Loan Parties hereunder or and under any other Credit Loan Document will be made without setoff, counterclaim or other defense. .
(ii) Except as provided in Section 5.04(b), all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excludingexcluding those certain taxes described in Section 13.01(a)(ii), which shall be governed solely by the provisions of such Section, and, except as provided in the second succeeding sentence, with respect to the Administrative any Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the any Borrower hereunder, (iw) taxes imposed on or measured by its overall net income (however denominated), ) and franchise taxes imposed (in lieu of on or measured by its gross or net income taxes)or receipts, in each case by the jurisdiction (or any political subdivision or taxing authority thereof) under the laws of which such recipient is organized or is otherwise doing business or has a permanent establishment for purposes of an applicable tax treaty or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (iix) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the principal office or applicable lending office of the Administrative Agent or the Lender, as the case may be, any Borrower is located, and (iiiy) in the case of a Non-US LenderForeign Lender (other than an assignee pursuant to a request by a Borrower under Section 2.13), any withholding tax that is imposed on amounts payable to such Non-US Foreign Lender at the time such Non-US Lender becomes a party hereto (or designates a new lending office), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from a Borrower with respect to such withholding pursuant to Section 5.04(a) and (z) any withholding tax that is attributable to such Non-US a Foreign Lender’s failure to comply with Section 5.04(b)) or (c) or providing incorrect, except to the extent that such Non-US Lender was entitled at the time of the designation of the new lending office to receive additional amounts from the Borrower false or misleading statements with respect to such withholding tax pursuant to Section 5.04(athereto) (collectively, the “Excluded Taxes”)), and all interest, penalties or similar liabilities with respect to such non-Excluded Taxes, levies, imposts, duties, fees, assessments or other charges thereto (all such non-Excluded Taxesexcluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”). If any Taxes are required to be deducted so levied or withheldimposed, the respective Borrower agrees and any other Loan Party making the respective payment or which has guaranteed the obligations of the relevant Borrower jointly or severally agree to pay the full amount of such Taxes, and such additional amounts as may be necessary so that every payment of all amounts due under this Agreement or under any Noteother Loan Document, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Noteother Loan Documents. If, pursuant to the preceding sentence, any additional amounts are payable in respect of Taxes, the respective Borrower and any other Loan Party making the respective payment or which has guaranteed the obligations of the relevant Borrower jointly and severally agree to reimburse each affected Lender, upon the written request of such Lender, for any taxes imposed on such Lender as a result of the payment of such additional amounts and which are measured by the net income of such Lender pursuant to the laws of the jurisdiction in which such Lender is organized or in which the principal office or applicable lending office of such Lender is located or under the laws of any political subdivision or taxing authority of any such jurisdiction in which such Lender is organized or in which the principal office or applicable lending office of such Lender is located and for any withholding of taxes as such Lender shall determine are payable by, or withheld from, such Lender, in respect of such amounts so paid to or on behalf of such Lender pursuant to the preceding sentence and in respect of any amounts paid to or on behalf of such Lender pursuant to this sentence. The respective Borrower (or other Loan Party) will furnish to the Administrative Agent as soon as practicable within 45 days after the date the payment of any Taxes is due pursuant to applicable law certified copies of tax receipts evidencing such payment by such Borrower (or other Loan Party) or other evidence of such payment reasonably acceptable to the Administrative Agent. The Borrower agrees Subject to Section 14.07, (i) the U.S. Borrowers (jointly and severally) agree (and the applicable U.S. Subsidiary Guarantors agree), to indemnify and hold harmless each U.S. Facility Lender and (ii) the U.S. Borrowers (jointly and severally) or the Canadian Borrowers (jointly and severally), as applicable, agree (and the applicable Subsidiary Guarantors agree) to indemnify and hold harmless each Canadian Facility Lender, and and, in each case, reimburse such Lender upon its written request, for the amount of any Taxes so levied or imposed and paid by such Lender; provided that.
(b) Each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes agrees to deliver to Holdings and the Administrative Agent on or prior to the Closing Date (i) two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY, no Form W-8ECI or Form W-8BEN (with respect to a complete exemption under an income tax treaty) (or successor forms) certifying to such Lender’s entitlement as of such date to a complete exemption from United States withholding tax with respect to payments to be made by the U.S. Borrowers under this Agreement and under any Note, or (ii) if the Lender shall is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8IMY, Form W-8ECI or Form W-8BEN (with respect to a complete exemption under an income tax treaty) pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit L (any such certificate, a “Section 5.04(b)(ii) Certificate”) and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio interest exemption) (or successor form) certifying to such Lender’s entitlement as of such date to a complete exemption from United States withholding tax with respect to payments of interest to be indemnified for made by the U.S. Borrowers under this Agreement and under any Taxes hereunder unless Note. In addition, each Lender agrees that from time to time after the Closing Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, such Lender will deliver to Holdings and the Administrative Agent two new accurate and complete original signed copies of Internal Revenue Service Form W-8IMY, Form W-8ECI, Form W-8BEN (with respect to the benefits of any income tax treaty), or Form W-8BEN (with respect to the portfolio interest exemption) and a Section 5.04(b)(ii) Certificate, as the case may be, and such other forms as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax with respect to payments by the U.S. Borrowers under this Agreement and any Note, or such Lender shall make written demand on immediately notify Holdings and the Borrower for reimbursement hereunder no later than 180 days after the earlier Administrative Agent of (i) the date on its inability to deliver any such Form or Certificate, in which case such Lender makes payment of shall not be required to deliver any such Taxes Form or Certificate pursuant to this Section 5.04(b). Notwithstanding anything to the contrary contained in Section 5.04(a)(ii), but subject to Section 13.04(b) and the immediately succeeding sentence, (iix) each U.S. Borrower shall be entitled, to the date on which extent it is required to do so by law, to deduct or withhold income or similar taxes imposed by the relevant jurisdiction United States (or any political subdivision or taxing authority thereof makes initial written demand upon or therein) from interest, Fees or other amounts payable hereunder for the account of any Lender which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes to the extent that such Lender for payment has not provided to Holdings U.S. Internal Revenue Service Forms that establish a complete exemption from such deduction or withholding and (y) each U.S. Borrower shall not be obligated pursuant to Section 5.04(a) to gross-up payments to be made to a Lender in respect of income or similar taxes imposed by the United States if (I) such Lender has not provided to Holdings the Internal Revenue Service Forms required to be provided to Holdings pursuant to this Section 5.04(b) or (II) in the case of a payment, other than interest, to a Lender described in clause (ii) above, to the extent that such forms do not establish a complete exemption from withholding of such Taxestaxes. Notwithstanding anything to the contrary contained in the preceding sentence or elsewhere in this Section 5.04 and except as set forth in Section 13.04(b) and subject to Section 14.07, (i) the U.S. Borrowers (jointly and severally) agree (and the applicable U.S. Subsidiary Guarantors agree), to indemnify and hold harmless each U.S. Facility Lender and (ii) the U.S. Borrowers (jointly and severally) or the Canadian Borrowers (jointly and severally), as applicable, agree (and the applicable Subsidiary Guarantors agree) to pay any additional amounts and to indemnify such Lender in the manner set forth in Section 5.04(a) (without regard to the identity of the jurisdiction requiring the deduction or withholding) in respect of any amounts deducted or withheld by it as described in the immediately preceding sentence as a result of any changes after the Closing Date in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of income or similar taxes.
(bc) Each Canadian Facility Lender agrees to use reasonable efforts (consistent with the legal and regulatory restrictions and subject to overall policy considerations of such Canadian Facility Lender) to file any certificate or document or to furnish to the relevant Canadian Borrower any information, in each case, as reasonably requested by the such Canadian Borrower that may be necessary to establish any available exemption from, or reduction in the amount of, any Taxes; provided, however, that nothing in this Section 5.04(b5.04(c) shall require a Canadian Facility Lender to disclose any confidential information (including, without limitation, its tax returns or its calculations).
(cd) If the Administrative Agent any Borrower or Loan Party pays any amount under this Section 5.04 to a Lender determinesor any other Person and such Lender determines in its sole discretion that it (or any of its Affiliates) has actually received or realized in connection therewith any refund or any reduction of its Tax liabilities in or with respect to the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay to such Borrower an amount that the Lender shall, in its sole discretion, that it has received a refund of any Taxes as determine is equal to the net benefit, after tax, which it has been indemnified was obtained by the Borrower Lender (or with respect to which the Borrower has paid additional amounts pursuant to this Section 5.04, it shall pay to the Borrower an amount equal to its Affiliates) as a consequence of such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant jurisdiction or any political subdivision or taxing authority thereof with respect to such refund), Tax Benefit; provided, however, that (i) the Administrative Agent or Lender, as the case may be, any Lender may determine, in its sole discretion consistent with the policies of the Administrative Agent or such Lender, as the case may be, whether to seek a refundTax Benefit; and (ii) any Taxes that are imposed on a Lender as a result of a disallowance or reduction of any Tax Benefit with respect to which such Lender has made a payment to the Borrower, upon Borrower pursuant to this Section 5.04(d) shall be treated as a Tax for which the request of Borrower is obligated to indemnify such Lender pursuant to this Section 5.04 without any exclusions or defenses; (iii) nothing in this Section 5.04(d) shall require the Administrative Agent or such Lender, agrees Lender to repay the amount paid over disclose any confidential information to the Borrower (plus including, without limitation, its tax returns); and (iv) no Lender shall be required to pay any penalties, interest amounts pursuant to this Section 5.04(d) at any time which a Default or Event of Default exists.
(e) Each Agent and each Lender that is a U.S. person within the meaning of Section 7701(a)(30) of the Code (other charges imposed by the relevant jurisdiction or than any political subdivision or taxing authority thereofsuch person that is treated as a corporation for United States federal income tax purposes) shall deliver to Holdings and the Administrative Agent on or before the date such Lender in the event the Administrative Agent or such Lender is required Person becomes a party to repay such refund to such jurisdiction or any political subdivision or taxing authority thereof. This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns this Agreement a duly completed Xxxxxx Xxxxxx Internal Revenue Service form W-9 (or any other information successor form) establishing that it deems confidential) such Person is not subject to the Borrower or any other PersonU.S. federal backup withholding.
Appears in 2 contracts
Samples: Abl Credit Agreement (Smurfit Stone Container Corp), Abl Credit Agreement (Smurfit Stone Container Corp)
Net Payments; Taxes. (a) All payments made by any Credit Party hereunder or under any other Credit Document will be made without setoff, counterclaim or other defense. Except as provided in Section 5.04(b4.04(b), all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (i) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed (in lieu of net income taxes), by the jurisdiction (or any political subdivision or taxing authority thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (ii) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the principal principle office or applicable lending office of the Administrative Agent or the Lender, as the case may be, is located, and (iii) in the case of a Non-US Foreign Lender, any withholding tax that is imposed on amounts payable to such Non-US Foreign Lender at the time such Non-US Foreign Lender designates a new lending office or is attributable to such Non-US Foreign Lender’s failure to comply with Section 5.04(b4.04(b), except to the extent that such Non-US Foreign Lender was entitled at the time of the designation of the new lending office to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 5.04(a4.04(a) (collectively, the “Excluded Taxes”)), and all interest, penalties or similar liabilities with respect to such non-Excluded Taxesexcluded taxes, levies, imposts, duties, fees, assessments or other charges (all such non-Excluded Taxesexcluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”). If any Taxes are required to be deducted or withheld, the Borrower agrees to pay the full amount of such Taxes, and such additional amounts as may be necessary so that every payment under this Agreement or under any Note, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Note. The Borrower will furnish to the Administrative Agent as soon as practicable after the date the payment of any Taxes is due pursuant to applicable law certified copies of tax receipts or other evidence of such payment reasonably acceptable to the Administrative Agent. The Borrower agrees to indemnify and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Taxes so levied or imposed and paid by such Lender; provided that, no Lender shall be indemnified for any Taxes hereunder unless such Lender shall make written demand on the Borrower for reimbursement hereunder no later than 180 days after the earlier of (i) the date on which such Lender makes payment of such Taxes and (ii) the date on which the relevant jurisdiction or any political subdivision or taxing authority thereof makes initial written demand upon such Lender for payment of such Taxes.
(b) Each Lender agrees to use reasonable efforts (consistent with the legal and regulatory restrictions and subject to overall policy considerations of such Lender) to file any certificate or document or to furnish to the Borrower any information, in each case, as reasonably requested by the Borrower that may be necessary to establish any available exemption from, or reduction in the amount of, any Taxes; provided, however, that nothing in this Section 5.04(b4.04(b) shall require a Lender to disclose any confidential information (including, without limitation, its tax returns or its calculations).
(c) If the Administrative Agent or a Lender determines, in its sole discretion, that it has received a refund of any Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 5.044.04, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant jurisdiction or any political subdivision or taxing authority thereof with respect to such refund), provided, however, that (i) the Administrative Agent or Lender, as the case may be, may determine, in its sole discretion consistent with the policies of the Administrative Agent or Lender, as the case may be, whether to seek a refund; and (ii) the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant jurisdiction or any political subdivision or taxing authority thereof) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such jurisdiction or any political subdivision or taxing authority thereof. This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information that it deems confidential) to the Borrower or any other Person.
Appears in 2 contracts
Samples: Credit Agreement (Trico Marine Services Inc), Credit Agreement (Trico Marine Services Inc)
Net Payments; Taxes. (ai) All payments made by any Credit Party the Borrowers and the other Loan Parties hereunder or and under any other Credit Loan Document will be made without setoff, counterclaim or other defense. .
(ii) Except as provided in Section 5.04(b), all such payments made by or on account of any obligation of the Loan Parties hereunder and under any other Loan Document will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments payments, including all interest, penalties or similar liabilities with respect thereto but excluding (but excludingu) those certain taxes described in Section 13.01(a)(ii), which shall be governed solely by the provisions of such Section, and, except as provided in the second succeeding sentence, with respect to the Administrative any Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the any Borrower hereunder, (iv) taxes imposed on or measured by its overall net income (however denominated), taxes imposed on or measured by its capital and franchise taxes imposed (in lieu of on or measured by its gross or net income or receipts and backup withholding taxes), in each case by the jurisdiction (or any political subdivision or taxing authority thereof) under the laws of which such recipient is organized organized, is resident for tax purposes or is doing business (otherwise than by reason of the transactions contemplated by this Agreement), or in which its principal office is located or, in the case of any Lender, in which its or applicable lending office is located, (iiw) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the principal office or applicable lending office of the Administrative Agent or the Lenderjurisdiction, as the case may be, is located, and (iiix) in the case of a Non-US LenderForeign Lender (other than an assignee pursuant to a request by a Borrower under Section 2.13), any withholding tax that is imposed on amounts payable to such Non-US Foreign Lender at the time such Non-US Lender becomes a party hereto (or designates a new lending office), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from a Borrower with respect to such withholding pursuant to Section 5.04(a), (y) any withholding tax that is attributable to such Non-US a Foreign Lender’s failure to comply with Section 5.04(b)) or (c) or willfully providing incorrect, except to the extent that such Non-US Lender was entitled at the time of the designation of the new lending office to receive additional amounts from the Borrower false or misleading statements with respect to such thereto and (z) any withholding tax imposed pursuant to Section 5.04(a) (collectively, the “Excluded Taxes”))FATCA, and all interest, penalties or similar liabilities with respect to such non-Excluded Taxes, levies, imposts, duties, fees, assessments or other charges thereto (all such non-Excluded Taxesexcluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”). If any Taxes are required to be deducted so levied or withheldimposed, the respective Borrower agrees and any other Loan Party making the respective payment or which has guaranteed the obligations of the relevant Borrower jointly or severally agree to pay the full amount of such Taxes, and such additional amounts as may be necessary so that every payment of all amounts due under this Agreement or under any Noteother Loan Document, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Noteother Loan Documents. If, pursuant to the preceding sentence, any additional amounts are payable in respect of Taxes, the respective Borrower and any other Loan Party making the respective payment or which has guaranteed the obligations of the relevant Borrower jointly and severally agree to reimburse each affected Lender, upon the written request of such Lender, for any taxes imposed on such Lender as a result of the payment of such additional amounts and which are measured by the net income of such Lender pursuant to the laws of the jurisdiction in which such Lender is organized or in which the principal office or applicable lending office of such Lender is located or under the laws of any political subdivision or taxing authority of any such jurisdiction in which such Lender is organized or in which the principal office or applicable lending office of such Lender is located and for any withholding of taxes as such Lender shall determine are payable by, or withheld from, such Lender, in respect of such amounts so paid to or on behalf of such Lender pursuant to the preceding sentence and in respect of any amounts paid to or on behalf of such Lender pursuant to this sentence. The respective Borrower (or other Loan Party) will furnish to the Administrative Agent as soon as practicable within 45 days after the date the payment of any Taxes is due pursuant to applicable law certified copies of tax receipts evidencing such payment by such Borrower (or other Loan Party) or other evidence of such payment reasonably acceptable to the Administrative Agent. The Borrower agrees Subject to Section 14.07, (i) the U.S. Borrowers (jointly and severally) agree (and the applicable U.S. Subsidiary Guarantors agree), to indemnify and hold harmless each U.S. Facility Lender and (ii) the U.S. Borrowers (jointly and severally) or the Canadian Borrowers (jointly and severally), as applicable, agree (and the applicable Subsidiary Guarantors agree) to indemnify and hold harmless each Canadian Facility Lender, and and, in each case, reimburse such Lender upon its written requestrequest (which written request shall show in reasonable detail the basis for calculation of any such additional amount), for the amount of any Taxes so levied or imposed and paid by such Lender; provided that.
(b) Each Lender as of the date hereof that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes agrees to deliver to AbitibiBowater and the Administrative Agent, no to the extent it is legally entitled to do so, on or prior to the Closing Date (i) two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY, Form W-8ECI or Form W-8BEN (with respect to a partial or complete exemption under an income tax treaty) (or successor forms) certifying to such Lender’s entitlement as of such date to a partial or complete exemption from United States withholding tax with respect to payments to be made by the U.S. Borrowers under this Agreement and under any Note, or (ii) if the Lender shall is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8IMY, Form W-8ECI or Form W-8BEN (with respect to a complete exemption under an income tax treaty) pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit K (any such certificate, a “Section 5.04(b)(ii) Certificate”) and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio interest exemption) (or successor form) certifying to such Lender’s entitlement as of such date to a complete exemption from United States withholding tax with respect to payments of interest to be indemnified for made by the U.S. Borrowers under this Agreement and under any Taxes hereunder unless Note. In addition, each Lender agrees that from time to time after the Closing Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any respect, such Lender will deliver to AbitibiBowater and the Administrative Agent two new accurate and complete original signed copies of Internal Revenue Service Form W-8IMY, Form W-8ECI, Form W-8BEN (with respect to the benefits of any income tax treaty), or Form W-8BEN (with respect to the portfolio interest exemption) and a Section 5.04(b)(ii) Certificate, as the case may be, and such other forms as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax with respect to payments by the U.S. Borrowers under this Agreement and any Note, or such Lender shall make written demand on promptly notify AbitibiBowater and the Borrower for reimbursement hereunder no later than 180 days after the earlier Administrative Agent of (i) the date on its inability to deliver any such Form or Certificate, in which case such Lender makes payment of shall not be required to deliver any such Taxes Form or Certificate pursuant to this Section 5.04(b). Notwithstanding anything to the contrary contained in to Section 13.04(b) and the immediately succeeding sentence, (iix) each U.S. Borrower and the date on which Administrative Agent shall be entitled, to the relevant jurisdiction extent it is required to do so by law, to deduct or withhold income or similar taxes imposed by the United States (or any political subdivision or taxing authority thereof makes initial written demand upon or therein) from interest, Fees or other amounts payable hereunder for the account of any Lender which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes to the extent that such Lender for payment has not provided to AbitibiBowater and the Administrative Agent U.S. Internal Revenue Service Forms that establish a complete exemption from such deduction or withholding and (y) each U.S. Borrower shall not be obligated pursuant to Section 5.04(a) to gross-up payments to be made to a Lender in respect of income or similar taxes imposed by the United States if (I) such Lender has not provided to AbitibiBowater and the Administrative Agent the Internal Revenue Service Forms required to be provided to AbitibiBowater and the Administrative Agent pursuant to this Section 5.04(b) or (II) in the case of a payment, other than interest, to a Lender described in clause (ii) above, to the extent that such forms do not establish a complete exemption from withholding of such Taxestaxes. Notwithstanding anything to the contrary contained in the preceding sentence or elsewhere in this Section 5.04 and except as set forth in Section 13.04(b) and subject to Section 14.07, (i) the U.S. Borrowers (jointly and severally) agree (and the applicable U.S. Subsidiary Guarantors agree), to indemnify and hold harmless each U.S. Facility Lender and (ii) the U.S. Borrowers (jointly and severally) or the Canadian Borrowers (jointly and severally), as applicable, agree (and the applicable Subsidiary Guarantors agree) to pay any additional amounts and to indemnify each Lender in the manner set forth in Section 5.04(a) (without regard to the identity of the jurisdiction requiring the deduction or withholding) in respect of any amounts deducted or withheld by it as described in the immediately preceding sentence as a result of any changes after the Closing Date in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of income or similar taxes.
(bc) Each Canadian Facility Lender agrees to use reasonable efforts (consistent with the legal and regulatory restrictions and subject to overall policy considerations of such Canadian Facility Lender) to file any certificate or document or to furnish to the relevant Canadian Borrower any information, in each case, as reasonably requested by the such Canadian Borrower that may be necessary to establish any available exemption from, or reduction in the amount of, any Taxes; provided, however, that nothing in this Section 5.04(b5.04(c) shall require a Canadian Facility Lender to disclose any confidential information (including, without limitation, its tax returns or its calculations).
(cd) If the Administrative Agent an Agent, Lender or a Issuing Lender determines, in good faith and in its sole discretion, that it has received a refund of any taxes in respect of or calculated with reference to Taxes as to which it has been indemnified by the Borrower a Loan Party or with respect to which the Borrower a Loan Party has paid additional amounts pursuant to this Section 5.04, it shall pay to the Borrower an amount equal over such refund to such refund Loan Party (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower such Loan Party under this Section 5.04 with respect to the Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses of such Agent, Lender or Issuing Lender (including any Taxes imposed with respect to such refund) as is determined by the Administrative Agent Agent, Lender or such Lender, as the case may beIssuing Lender in good faith and in its sole discretion, and without interest (other than any interest paid by the relevant jurisdiction or any political subdivision or taxing authority thereof Governmental Authority with respect to such refund), provided, however, ; provided that (i) the Administrative Agent or Lender, as the case may be, may determine, in its sole discretion consistent with the policies of the Administrative Agent or Lender, as the case may be, whether to seek a refund; and (ii) the Borrowersuch Loan Party, upon the request of the Administrative Agent such Agent, Lender or such Issuing Lender, agrees to repay as soon as reasonably practicable the amount paid over to the Borrower such Loan Party (plus any penalties, interest or other charges imposed by the relevant jurisdiction or any political subdivision or taxing authority thereofGovernmental Authority) to the Administrative Agent such Agent, Lender or such Issuing Lender in the event the Administrative Agent such Agent, Lender or such Issuing Lender is required to repay such refund to such jurisdiction or any political subdivision or taxing authority thereofGovernmental Authority. This paragraph Section shall not be construed to require the Administrative Agent any Agent, Lender or any Lender Issuing Bank to make available its tax returns (or any other information that relating to its Taxes which it deems confidential) to the Borrower Loan Parties or any other Person.
(e) Each Agent and each Lender that is a U.S. person within the meaning of Section 7701(a)(30) of the Code (other than any such person that is treated as a corporation for United States federal income tax purposes) shall deliver to AbitibiBowater and the Administrative Agent on or before the date such Person becomes a party to this Agreement a duly completed United States Internal Revenue Service form W-9 (or successor form) establishing that such Person is not subject to U.S. federal backup withholding.
(f) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to AbitibiBowater and the Administrative Agent, at the time or times reasonably requested by AbitibiBowater or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate of withholding. Notwithstanding anything to the contrary in the preceding sentence, the completion, execution and submission of such documentation (other than such documentation set forth in Section 5.04(b), (c), (e) and (g)) shall not be required if in the Lender’s judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify AbitibiBowater and the Administrative Agent in writing of its legal inability to do so.
(g) If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to AbitibiBowater and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by AbitibiBowater or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by AbitibiBowater or the Administrative Agent as may be necessary for AbitibiBowater and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.
Appears in 1 contract
Net Payments; Taxes. (a) All payments to be made by any Credit Party hereunder or and under the Notes and any other Credit Document will Loan Documents by the Company shall be made without setoff, counterclaim or other defense. Except as provided in Subject to Section 5.04(b)5.06(b) hereof with respect to U.S. Taxes, all such payments will shall be made free and clear of, of and without deduction for or withholding foron account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, assessments deductions or other charges of whatever nature withholdings, now or hereafter imposed imposed, levied, collected, withheld or assessed by any governmental authority (other than taxes imposed on the Agent, any Lender or its Applicable Lending Office by the jurisdiction in which the Agent or by such Lender is organized or has its principal office or in which its Applicable Lending Office is organized or located or, in each case, any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (i) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed (in lieu of net income taxes), by the jurisdiction (or any political subdivision or taxing authority thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (ii) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the principal office or applicable lending office of the Administrative Agent or the Lender, as the case may be, is located, and (iii) in the case of a Non-US Lender, any withholding tax that is imposed on amounts payable to such Non-US Lender at the time such Non-US Lender designates a new lending office or is attributable to such Non-US Lender’s failure to comply with Section 5.04(b), except to the extent that such Non-US Lender was entitled at the time of the designation of the new lending office to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 5.04(atherein) (collectively, the “Excluded Taxes”)), and all interest, penalties or similar liabilities with respect to such non-Excluded Taxes, levies, imposts, duties, fees, assessments or other charges (all such non-Excluded Taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”"TAXES"). If any Taxes are imposed and required to be deducted withheld from any amount payable by the Company hereunder or withheldunder the Notes, the Borrower agrees Company shall be obligated to (i) pay the full amount of such Taxes, and such additional amounts as may be necessary amount so that every payment under this Agreement or under any Note, the Agent and the Lenders will receive a net amount (after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Note. The Borrower will furnish giving effect to the Administrative Agent as soon as practicable after the date the payment of such additional amount and to the deduction of all Taxes) equal to the amount due hereunder, (ii) pay such Taxes to the appropriate taxing authority for the account of the Agent, for the benefit of the Lenders and (iii) as promptly as possible thereafter, sending the Agent a certified copy of any original official receipt showing payment thereof, together with such additional documentary evidence as the Agent may from time to time reasonably require. If the Company fails to pay any Taxes is when due pursuant to applicable law certified copies of tax the appropriate taxing authority or fails to remit to the Agent the required receipts or other evidence of such payment reasonably acceptable to required documentary evidence, the Administrative Agent. The Borrower agrees Company shall be obligated to indemnify the Agent and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Taxes so levied or imposed and paid by such Lender; provided that, no Lender shall be indemnified for any Taxes hereunder unless such Lender shall make written demand on the Borrower for reimbursement hereunder no later than 180 days after the earlier of (i) the date on which such Lender makes payment of such Taxes and (ii) the date on which the relevant jurisdiction or any political subdivision or taxing authority thereof makes initial written demand upon such Lender for payment of such Taxes.
(b) Each Lender agrees to use reasonable efforts (consistent with the legal and regulatory restrictions and subject to overall policy considerations of such Lender) to file any certificate or document or to furnish to the Borrower any information, in each case, as reasonably requested by the Borrower that may be necessary to establish any available exemption from, or reduction in the amount of, any Taxes; provided, however, that nothing in this Section 5.04(b) shall require a Lender to disclose any confidential information (including, without limitation, its tax returns or its calculations).
(c) If the Administrative Agent or a Lender determines, in its sole discretion, that it has received a refund of any Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 5.04, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant jurisdiction or any political subdivision or taxing authority thereof with respect to such refund), provided, however, that (i) the Administrative Agent or Lender, as the case may be, may determine, in its sole discretion consistent with the policies of the Administrative Agent or Lender, as the case may be, whether to seek a refund; and (ii) the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penaltiesincremental taxes, interest or other charges imposed penalties that may become payable by the relevant jurisdiction or any political subdivision or taxing authority thereof) to the Administrative Agent or such Lender in as a result of such failure. The obligations of the event the Administrative Agent or such Lender is required to repay such refund to such jurisdiction or any political subdivision or taxing authority thereof. This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information that it deems confidential) to the Borrower or any other Person.Company under this
Appears in 1 contract
Samples: Credit Agreement (Suiza Foods Corp)
Net Payments; Taxes. (a) All payments made by any Credit Party hereunder or under any other Credit Document Note will be made without setoff, counterclaim or other defense. Except as provided in Section 5.04(b4.04(b), all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, with respect to except as provided in the Administrative Agentsecond succeeding sentence, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (i) taxes tax imposed on or measured by its overall the net income (however denominated)or net profits of a Bank, and franchise taxes imposed (in lieu of net income taxes), by the jurisdiction (or any political subdivision or taxing authority thereof) under pursuant to the laws of the jurisdiction in which such recipient it is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (ii) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the principal office or applicable lending office of the Administrative Agent such Bank is located or the Lender, as the case may be, is located, and (iiiany subdivision thereof or therein) in the case of a Non-US Lender, any withholding tax that is imposed on amounts payable to such Non-US Lender at the time such Non-US Lender designates a new lending office or is attributable to such Non-US Lender’s failure to comply with Section 5.04(b), except to the extent that such Non-US Lender was entitled at the time of the designation of the new lending office to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 5.04(a) (collectively, the “Excluded Taxes”)), and all interest, penalties or similar liabilities with respect to such non-Excluded Taxesexcluded taxes, levies, imposts, duties, fees, assessments or other charges (all such non-Excluded Taxesexcluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “"Taxes”"). If any Taxes are required to be deducted so levied or withheldimposed, the Borrower agrees to pay the full amount of such Taxes, and such additional amounts as may be necessary so that every payment of all amounts due under this Agreement or under any Note, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Note. If any amounts are payable in respect of Taxes pursuant to the preceding sentence, the Borrower agrees to reimburse each Bank, upon the written request of such Bank, for taxes imposed on or measured by the net income or net profits of such Bank pursuant to the laws of the jurisdiction in which such Bank is organized or in which the principal office or applicable lending office of such Bank is located or under the laws of any political subdivision or taxing authority of any such jurisdiction in which such Bank is organized or in which the principal office or applicable lending office of such Bank is located and for any withholding of income or similar taxes as such Bank shall determine are payable by, or withheld from, such Bank in respect of such amounts so paid to or on behalf of such Bank pursuant to the preceding sentence and in respect of any amounts paid to or on behalf of such Bank pursuant to this sentence. The Borrower will furnish to the Administrative Agent as soon as practicable within 45 days after the date the payment of any Taxes is due pursuant to applicable law certified copies of tax receipts or other evidence of evidencing such payment reasonably acceptable to by the Administrative AgentBorrower. The Borrower agrees to indemnify and hold harmless each LenderBank, and reimburse such Lender Bank upon its written request, for the amount of any Taxes so levied or imposed and paid by such Lender; provided thatBank.
(b) Each Bank that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes agrees to deliver to the Borrower and the Agent on or prior to the Effective Date, no Lender shall be indemnified for any Taxes or in the case of a Bank that is an assignee or transferee of an interest under this Agreement pursuant to Section 1.13 or 13.04 (unless the respective Bank was already a Bank hereunder unless immediately prior to such Lender shall make written demand assignment or transfer), on the Borrower for reimbursement hereunder no later than 180 days after the earlier date of such assignment or transfer to such Bank, (i) the date on which two accurate and complete original signed copies of Internal Revenue Service Form 4224 or 1001 (or successor forms) certifying to such Lender makes payment of such Taxes Bank's entitlement to a complete exemption from United States withholding tax with respect to payments to be made under this Agreement and under any Note, or (ii) if the date on Bank is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form 1001 or 4224 pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit D (any such certificate, a "Section 4.04(b)(ii) Certificate") and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8 (or successor form) certifying to such Bank's entitlement to a complete exemption from United States withholding tax with respect to payments of interest to be made under this Agreement and under any Note. In addition, each Bank agrees that from time to time after the Effective Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to the Borrower and the Agent two new accurate and complete original signed copies of Internal Revenue Service Form 4224 or 1001, or Form W-8 and a Section 4.04(b)(ii) Certificate, as the case may be, and such other forms as may be required in order to confirm or establish the entitlement of such Bank to a continued exemption from or reduction in United States withholding tax with respect to payments under this Agreement and any Note, or it shall immediately notify the Borrower and the Agent of its inability to deliver any such Form or Certificate, in which case such Bank shall not be required to deliver any such Form or Certificate pursuant to this Section 4.04(b). Notwithstanding anything to the relevant jurisdiction contrary contained in Section 4.04(a), but subject to Section 13.04(b) and the immediately succeeding sentence, (x) the Borrower shall be entitled, to the extent it is required to do so by law, to deduct or withhold income or similar taxes imposed by the United States (or any political subdivision or taxing authority thereof makes initial written demand upon or therein) from interest, Fees or other amounts payable hereunder for the account of any Bank which is not a United States person (as such Lender term is defined in Section 7701(a)(30) of the Code) for payment U.S. Federal income tax purposes to the extent that such Bank has not provided to the Borrower U.S. Internal Revenue Service Forms that establish a complete exemption from such deduction or withholding and (y) the Borrower shall not be obligated pursuant to Section 4.04(a) to gross-up payments to be made to a Bank in respect of income or similar taxes imposed by the United States if (I) such Bank has not provided to the Borrower the Internal Revenue Service Forms required to be provided to the Borrower pursuant to this Section 4.04(b) or (II) in the case of a payment, other than interest, to a Bank described in clause (ii) above, to the extent that such Forms do not establish a complete exemption from withholding of such taxes. Notwithstanding anything to the contrary contained in the preceding sentence or elsewhere in this Section 4.04 and except as set forth in Section 13.04(b), the Borrower agrees to pay additional amounts and to indemnify each Bank in the manner set forth in Section 4.04(a) (without regard to the identity of the jurisdiction requiring the deduction or withholding) in respect of any Taxes deducted or withheld by it as described in the immediately preceding sentence as a result of any changes after the Effective Date (or, if later, the date such Bank became party to this Agreement) in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of such Taxes.
(b) Each Lender agrees to use reasonable efforts (consistent with the legal and regulatory restrictions and subject to overall policy considerations of such Lender) to file any certificate or document or to furnish to the Borrower any information, in each case, as reasonably requested by the Borrower that may be necessary to establish any available exemption from, or reduction in the amount of, any Taxes; provided, however, that nothing in this Section 5.04(b) shall require a Lender to disclose any confidential information (including, without limitation, its tax returns or its calculations).
(c) If the Administrative Agent or Borrower pays any additional amount under this Section 4.04 to a Lender determines, Bank and such Bank determines in its sole discretion, discretion that it has actually received a or realized in connection therewith any refund of or any Taxes as to which it has been indemnified by the Borrower reduction of, or credit against, its Tax liabilities in or with respect to the taxable year in which the Borrower has paid additional amounts pursuant to this Section 5.04amount is paid, it such Bank shall pay to the Borrower an amount equal to such refund (but only to that the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant jurisdiction or any political subdivision or taxing authority thereof with respect to such refund), provided, however, that (i) the Administrative Agent or Lender, as the case may be, may determineBank shall, in its sole discretion consistent with the policies of the Administrative Agent or Lenderdiscretion, as the case may be, whether to seek a refund; and (ii) the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over determine is equal to the Borrower (plus any penaltiesnet benefit, interest or other charges imposed after tax, which was obtained by the relevant jurisdiction Bank in such year as a consequence of such refund, reduction or any political subdivision or taxing authority thereof) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such jurisdiction or any political subdivision or taxing authority thereof. This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information that it deems confidential) to the Borrower or any other Personcredit.
Appears in 1 contract
Net Payments; Taxes. (a) All payments made by any Credit Party hereunder or under any other Credit Document will be made without setoff, counterclaim or other defense. Except as provided in Section 5.04(b4.04(b), all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower Borrowers hereunder, (i) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed (in lieu of net income taxes), by the jurisdiction (or any political subdivision or taxing authority thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (ii) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the principal office or applicable lending office of the Administrative Agent or the Lender, as the case may be, is located, and (iii) in the case of a Non-US Foreign Lender, any withholding tax that is imposed on amounts payable to such Non-US Foreign Lender at the time such Non-US Foreign Lender designates a new lending office or is attributable to such Non-US Foreign Lender’s failure to comply with Section 5.04(b4.04(b), except to the extent that such Non-US Foreign Lender was entitled at the time of the designation of the new lending office to receive additional amounts from the Borrower Borrowers with respect to such withholding tax pursuant to Section 5.04(a4.04(a) (collectively, the “Excluded Taxes”)), and all interest, penalties or similar liabilities with respect to such non-Excluded Taxes, levies, imposts, duties, fees, assessments or other charges (all such non-Excluded Taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”). If any Taxes are required to be deducted or withheld, the Borrower agrees Borrowers agree to pay the full amount of such Taxes, and such additional amounts as may be necessary so that every payment under this Agreement or under any Note, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Note. The Borrower Borrowers will furnish to the Administrative Agent as soon as practicable after the date the payment of any Taxes is due pursuant to applicable law certified copies of tax receipts or other evidence of such payment reasonably acceptable to the Administrative Agent. The Borrower agrees Borrowers jointly and severally agree to indemnify and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Taxes so levied or imposed and paid by such Lender; provided that, no Lender shall be indemnified for any Taxes hereunder unless such Lender shall make written demand on the Borrower Borrowers for reimbursement hereunder no later than 180 days after the earlier of (i) the date on which such Lender makes payment of such Taxes and (ii) the date on which the relevant jurisdiction or any political subdivision or taxing authority thereof makes initial written demand upon such Lender for payment of such Taxes.
(b) Each Lender agrees to use reasonable efforts (consistent with the legal and regulatory restrictions and subject to overall policy considerations of such Lender) to file any certificate or document or to furnish to the Borrower Borrowers any information, in each case, as reasonably requested by the Borrower Borrowers that may be necessary to establish any available exemption from, or reduction in the amount of, any Taxes; provided, however, that nothing in this Section 5.04(b4.04(b) shall require a Lender to disclose any confidential information (including, without limitation, its tax returns or its calculations).
(c) If the Administrative Agent or a Lender determines, in its sole discretion, that it has received a refund of any Taxes as to which it has been indemnified by the Borrower Borrowers or with respect to which the Borrower has Borrowers have paid additional amounts pursuant to this Section 5.044.04, it shall pay to the Borrower Borrowers an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower Borrowers under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant jurisdiction or any political subdivision or taxing authority thereof with respect to such refund), provided, however, that (i) the Administrative Agent or Lender, as the case may be, may determine, in its sole discretion consistent with the policies of the Administrative Agent or Lender, as the case may be, whether to seek a refund; and (ii) the BorrowerBorrowers, upon the request of the Administrative Agent or such Lender, agrees agree to repay the amount paid over to the Borrower Borrowers (plus any penalties, interest or other charges imposed by the relevant jurisdiction or any political subdivision or taxing authority thereof) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such jurisdiction or any political subdivision or taxing authority thereof. This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information that it deems confidential) to the Borrower Borrowers or any other Person.
Appears in 1 contract
Net Payments; Taxes. (a) All payments made by any Credit Party hereunder or under any other Credit Document Note will be made without setoff, counterclaim or other defense. Except as provided in Section 5.04(b4.04(b), all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, with respect to except as provided in the Administrative Agentsecond succeeding sentence, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (i) taxes tax imposed on or measured by its overall the net income (however denominated)or net profits of a Lender or Agent, and as the case may be, or any franchise taxes imposed (in lieu of tax based on the net income taxes)or net profits of a Lender or Agent, by as the jurisdiction (or any political subdivision or taxing authority thereof) under case may be, in either case pursuant to the laws of the jurisdiction in which such recipient Lender or such Agent is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (ii) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the principal office or applicable lending office of the Administrative such Lender or such Agent is located or the Lender, any subdivision thereof or therein all such excluded taxes being referred to collectively as the case may be, is located, and (iii) in the case of a Non-US Lender, any withholding tax that is imposed on amounts payable to such Non-US Lender at the time such Non-US Lender designates a new lending office or is attributable to such Non-US Lender’s failure to comply with Section 5.04(b), except to the extent that such Non-US Lender was entitled at the time of the designation of the new lending office to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 5.04(a) (collectively, the “"Excluded Taxes”)), ") and all interest, penalties or similar liabilities with respect to such non-Excluded Taxesexcluded taxes, levies, imposts, duties, fees, assessments fees or other charges (all such non-Excluded Taxesexcluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “"Taxes”"). If Subject to Section 4.04(b), if any Taxes are required to be deducted so levied or withheldimposed, the Borrower agrees to pay the full amount of such Taxes, and such additional amounts as may be necessary so that every payment of all amounts due under this Agreement or under any Note, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Note. If any amounts are payable in respect of Taxes pursuant to the preceding sentence, the Borrower agrees to reimburse each Lender or Agent, as the case may be, promptly after the written request of such Lender or such Agent, for taxes imposed on or measured by the net income or net profits of such Lender or such Agent, or any franchise tax based on the net income or net profits of such Lender or such Agent, in either case pursuant to the laws of the jurisdiction in which such Lender or such Agent is organized or in which the principal office or applicable lending office of such Lender or such Agent is located or under the laws of any political subdivision or taxing authority of any such jurisdiction in which such Lender or such Agent is organized or in which the principal office or applicable lending office of such Lender or such Agent is located and for any withholding of taxes as such Lender or such Agent shall determine are payable by, or withheld from, such Lender or such Agent in respect of such amounts so paid to or on behalf of such Lender or such Agent pursuant to the preceding sentence and in respect of any amounts paid to or on behalf of such Lender or such Agent pursuant to this sentence. The Borrower will furnish to the Administrative Agent as soon as practicable within 45 days after the date the payment of any Taxes is due pursuant to applicable law certified copies of tax receipts or other evidence of evidencing such payment reasonably acceptable to by the Administrative AgentBorrower. The Borrower agrees to indemnify and hold harmless each LenderLender or Agent, as the case may be, and reimburse such Lender or such Agent upon its written request, for the amount of any Taxes so levied or imposed and paid by such Lender; provided that, no Lender or such Agent. All amounts payable pursuant to this Section 4.04(a) shall be indemnified for any Taxes subject to the provisions of Section 13.17 (to the extent applicable).
(b) Each Lender and Agent that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) agrees to deliver to the Borrower and the Administrative Agent on or prior to the Effective Date, or in the case of a Lender or Agent that is an assignee or transferee of an interest under this Agreement pursuant to Section 1.13 or 13.04 (unless the respective Lender or Agent was already a Lender or Agent hereunder unless immediately prior to such assignment or transfer), on the date of such assignment or transfer to such Lender shall make written demand on the Borrower for reimbursement hereunder no later than 180 days after the earlier of or Agent, (i) the date on which two accurate and complete original signed Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under an income tax treaty) (or successor forms) certifying to such Lender makes payment Lender's or such Agent's entitlement as of such Taxes date to a complete exemption from United States withholding tax with respect to payments to be made under this Agreement and under any Note, or (ii) if the Lender or Agent is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI or Form W-8BEN (with the respect to a complete exemption under an income tax treaty) pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit E (any such certificate, a "Section 4.04(b)(ii) Certificate") and (y) two accurate and complete original signed Internal Revenue Service Form W-8BEN (with respect to the portfolio interest exemption) (or successor form) certifying to such Lender's or such Agent's entitlement as of such date on to a complete exemption from United States withholding tax with respect to payments of interest to be made under this Agreement and under any Note. In addition, each Lender and Agent agrees that from time to time after the Effective Date, when a lapse in time or change in circumstances or any changes after the Effective Date in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the official interpretation thereof, renders the previous certification obsolete or inaccurate in any material respect, such Lender or such Agent will deliver to the Borrower and the Administrative Agent two new accurate and complete original signed Internal Revenue Service Form W-8ECI, Form W-8BEN (with respect to the benefits of any income tax treaty), or Form W-8BEN (with respect to the portfolio interest exemption) and a Section 4.04(b)(ii) Certificate, as the case may be, and such other forms as may be required in order to confirm or establish the entitlement of such Lender or such Agent to a continued exemption from or reduction in United States withholding tax with respect to payments under this Agreement and any Note, or it shall immediately notify the Borrower and the Administrative Agent of its inability to deliver any such Form or Certificate, in which case such Lender or such Agent shall not be required to deliver any such Form or Certificate pursuant to this Section 4.04(b). Notwithstanding anything to the relevant jurisdiction contrary contained in Section 4.04(a), but subject to Section 13.04(b) and the immediately succeeding sentence, (x) the Borrower shall be entitled, to the extent it is required to do so by law, to deduct or withhold income or similar taxes imposed by the United States (or any political subdivision or taxing authority thereof makes initial written demand upon or therein) from interest, Fees or other amounts payable hereunder for the account of any Lender or Agent, as the case may be, which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes to the extent that such Lender for payment or such Agent has not provided to the Borrower U.S. Internal Revenue Service Forms that establish a complete exemption from such deduction or withholding and (y) the Borrower shall not be obligated pursuant to Section 4.04(a) to gross-up payments to be made to a Lender or Agent, as the case may be, in respect of income or similar taxes imposed by the United States if (I) such Lender or such Agent has not provided to the Borrower the Internal Revenue Service Forms required to be provided to the Borrower pursuant to this Section 4.04(b) or (II) in the case of a payment, other than interest, to a Lender or Agent, as the case may be, described in clause (ii) above, to the extent that such Forms do not establish a complete exemption from withholding of such Taxestaxes. Notwithstanding anything to the contrary contained in the preceding sentence or elsewhere in this Section 4.04 and except as set forth in Section 13.04(b), the Borrower agrees to pay additional amounts and to indemnify each Lender or Agent, as the case may be, in the manner set forth in Section 4.04(a) (without regard to the identity of the jurisdiction requiring the deduction or withholding) in respect of any amounts deducted or withheld by it as described in the immediately preceding sentence as a result of any changes after the Effective Date in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the official interpretation thereof, relating to the deducting or withholding of such income or similar taxes.
(bc) Each If the Borrower pays any additional amount under this Section 4.04 to a Lender agrees and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect to use reasonable efforts the taxable year in which the additional amount is paid (consistent with the legal and regulatory restrictions and subject to overall policy considerations of a "Tax Benefit"), such Lender) to file any certificate or document or to furnish Lender shall pay to the Borrower any informationan amount that the Lender shall, in each caseits sole discretion, as reasonably requested determine is equal to the net benefit, after tax, which was obtained by the Borrower that may be necessary to establish any available exemption from, or reduction Lender in the amount of, any Taxessuch year as a consequence of such Tax Benefit; provided, however, that (i) any Taxes that are imposed on a Lender as a result of a disallowance or reduction (including through the expiration of any tax credit carryover or carryback of such Lender that otherwise would not have expired) of any Tax Benefit with respect to which such Lender has made a payment to the Borrower pursuant to this Section 4.04(c) shall be treated as a Tax for which the Borrower is obligated to indemnify such Lender pursuant to this Section 4.04 without any exclusions or defenses; and (iii) nothing in this Section 5.04(b4.04(c) shall require a the Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns or its calculationsreturns).
(c) If the Administrative Agent or a Lender determines, in its sole discretion, that it has received a refund of any Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 5.04, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant jurisdiction or any political subdivision or taxing authority thereof with respect to such refund), provided, however, that (i) the Administrative Agent or Lender, as the case may be, may determine, in its sole discretion consistent with the policies of the Administrative Agent or Lender, as the case may be, whether to seek a refund; and (ii) the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant jurisdiction or any political subdivision or taxing authority thereof) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such jurisdiction or any political subdivision or taxing authority thereof. This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information that it deems confidential) to the Borrower or any other Person.
Appears in 1 contract
Net Payments; Taxes. (a) All payments made by any Credit Party hereunder or under any other Credit Document will be made without setoff, counterclaim or other defense. Except as provided in Section 5.04(b), all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (i) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed (in lieu of net income taxes), by the jurisdiction (or any political subdivision or taxing authority thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (ii) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the principal principle office or applicable lending office of the Administrative Agent or the Lender, as the case may be, is locatedlocated , and (iii) in the case of a Non-US Foreign Lender, any withholding tax that is imposed on amounts payable to such Non-US Foreign Lender at the time such Non-US Foreign Lender designates a new lending office or is attributable to such Non-US Foreign Lender’s failure to comply with Section 5.04(b), except to the extent that such Non-US Foreign Lender was entitled at the time of the designation of the new lending office to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 5.04(a) (collectively, the “Excluded Taxes”)), and all interest, penalties or similar liabilities with respect to such non-Excluded Taxesexcluded taxes, levies, imposts, duties, fees, assessments or other charges (all such non-Excluded Taxesexcluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”). If any Taxes are required to be deducted or withheld, the Borrower agrees to pay the full amount of such Taxes, and such additional amounts as may be necessary so that every payment under this Agreement or under any Note, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Note. The Borrower will furnish to the Administrative Agent as soon as practicable after the date the payment of any Taxes is due pursuant to applicable law certified copies of tax receipts or other evidence of such payment reasonably acceptable to the Administrative Agent. The Borrower agrees to indemnify and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Taxes so levied or imposed and paid by such Lender; provided that, no Lender shall be indemnified for any Taxes hereunder unless such Lender shall make written demand on the Borrower for reimbursement hereunder no later than 180 days after the earlier of (i) the date on which such Lender makes payment of such Taxes and (ii) the date on which the relevant jurisdiction or any political subdivision or taxing authority thereof makes initial written demand upon such Lender for payment of such Taxes.
(b) Each Lender agrees to use reasonable efforts that is not an “exempt recipient” (consistent with as such term is defined in Section 1.6049-4(c)(1)(ii) in the legal and regulatory restrictions and subject to overall policy considerations of such Lender) to file any certificate or document or to furnish to United States Treasury Regulations), as reasonably determined by the Borrower any informationor the Administrative Agent, in each caseif requested by the Borrower or the Administrative Agent, as shall deliver such documentation (including Form W-9) prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. In addition, each Foreign Lender agrees to deliver to the Borrower and the Administrative Agent on or prior to the Original Effective Date (i) two accurate and complete original signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under an income tax treaty) (or successor forms) certifying to such Foreign Lender’s entitlement as of such date to a complete exemption from United States withholding tax with respect to payments to be made under this Agreement and under any Note, or (ii) if the Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under an income tax treaty) (or any successor forms) pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit D (any such certificate, a “Section 5.04(b)(ii) Certificate”) and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio interest exemption) (or successor form) certifying to such Foreign Lender’s entitlement as of such date to a complete exemption from United States withholding tax with respect to payments of interest to be made under this Agreement and under any Note. In addition, each Foreign Lender agrees that from time to time after the Amendment and Restatement Effective Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, such Foreign Lender will deliver to the Borrower and the Administrative Agent two new accurate and complete original signed copies of Internal Revenue Service Form W-8ECI, Form W-8BEN (with respect to the benefits of any income tax treaty), or Form W-8BEN (with respect to the portfolio interest exemption) and a Section 5.04(b)(ii) Certificate, as the case may be, and such other forms as may be necessary required in order to confirm or establish any available the entitlement of such Foreign Lender to a continued exemption from, from or reduction in United States withholding tax with respect to payments under this Agreement and any Note, or such Foreign Lender shall immediately notify the amount ofBorrower and the Administrative Agent of its inability to deliver any such Form or Certificate, in which case such Foreign Lender shall not be required to deliver any Taxes; providedsuch Form or Certificate pursuant to this Section 5.04(b). Notwithstanding anything to the contrary contained in Section 5.04(a), howeverbut subject to Section 14.04(b) and the immediately succeeding sentence, (x) the Borrower shall be entitled, to the extent it is required to do so by law, to deduct or withhold Taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein) from interest, Fees or other amounts payable hereunder for the account of any Foreign Lender to the extent that such Foreign Lender has not provided to the Borrower U.S. Internal Revenue Service Forms and the Section 5.04(b)(ii) Certificate, as applicable, that nothing establish a complete exemption from such deduction or withholding and (y) the Borrower shall not be obligated pursuant to Section 5.04(a) to gross-up payments to be made to a Foreign Lender in respect of Taxes imposed by the United States if (I) such Foreign Lender has not provided to the Borrower the Internal Revenue Service Forms and the Section 5.04(b)(ii) Certificate, as applicable, required to be provided to the Borrower pursuant to this Section 5.04(b) shall require or (II) in the case of a payment, other than interest, to a Foreign Lender described in clause (ii) above, to disclose the extent that such Forms do not establish a complete exemption from withholding of such Taxes. Notwithstanding anything to the contrary contained in the preceding sentence or elsewhere in this Section 5.04 and except as set forth in Section 14.04(b), the Borrower agrees to pay any confidential information (includingadditional amounts and to indemnify each Foreign Lender with respect to Taxes in the manner set forth in Section 5.04(a) in respect of any amounts deducted or withheld by it as described in the immediately preceding sentence as a result of any changes that are effective after the Amendment and Restatement Effective Date in any applicable law, without limitationtreaty, its tax returns governmental rule, regulation, guideline or its calculations)order, or in the interpretation thereof, relating to the deducting or withholding of Taxes.
(c) If the Administrative Agent or a Lender determines, in its sole discretion, that it has received a refund of any Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 5.04, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant jurisdiction or any political subdivision or taxing authority thereof with respect to such refund), provided, however, that (i) the Administrative Agent or Lender, as the case may be, may determine, in its sole discretion consistent with the policies of the Administrative Agent or Lender, as the case may be, whether to seek a refund; and (ii) the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant jurisdiction or any political subdivision or taxing authority thereof) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such jurisdiction or any political subdivision or taxing authority thereof. This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information that it deems confidential) to the Borrower or any other Person.
Appears in 1 contract
Net Payments; Taxes. (a) All payments made by any Credit Party hereunder or under any other Credit Document will be made without setoff, counterclaim or other defense. Except as provided in Section 5.04(b), all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (i) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed (in lieu of net income taxes), by the jurisdiction (or any political subdivision or taxing authority thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (ii) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the principal principle office or applicable lending office of the Administrative Agent or the Lender, as the case may be, is locatedlocated , and (iii) in the case of a Non-US Foreign Lender, any withholding tax that is imposed on amounts payable to such Non-US Foreign Lender at the time such Non-US Foreign Lender designates a new lending office or is attributable to such Non-US Foreign Lender’s failure to comply with Section 5.04(b), except to the extent that such Non-US Foreign Lender was entitled at the time of the designation of the new lending office to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 5.04(a), and (iv) any withholding taxes imposed by FATCA (collectively, the “Excluded Taxes”)), and all interest, penalties or similar liabilities with respect to such non-Excluded Taxesexcluded taxes, levies, imposts, duties, fees, assessments or other charges (all such non-Excluded Taxesexcluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”). If any Taxes are Credit Party shall be required to deduct or withhold any Taxes from or in respect of any amount payable under any Credit Document or as a result of any judgment or award arising out of or related to any Credit Document, then (i) the sum payable shall be deducted or withheldincreased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section) the Agent and each Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower agrees to shall make such deductions and (iii) the Borrower shall timely pay the full amount of such Taxes, and such additional amounts as may be necessary so that every payment under this Agreement or under any Note, after withholding or deduction for or on account of any Taxes, will not be less than deducted to the amount provided for herein or relevant governmental authority in such Noteaccordance with applicable law. The Borrower will furnish to the Administrative Agent as soon as practicable after the date the payment of any Taxes is due pursuant to applicable law certified copies of tax receipts or other evidence of such payment reasonably acceptable to the Administrative Agent. The Borrower agrees to indemnify and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Taxes so levied or imposed and paid by such Lender; provided that, no Lender shall be indemnified for any Taxes hereunder unless such Lender shall make written demand on the Borrower for reimbursement hereunder no later than 180 days after the earlier of (i) the date on which such Lender makes payment of such Taxes and (ii) the date on which the relevant jurisdiction or any political subdivision or taxing authority thereof makes initial written demand upon such Lender for payment of such Taxes.
(b) Each Lender that is not an “exempt recipient” (as such term is defined in Section 1.6049-4(c)(1)(ii) in the United States Treasury Regulations), as reasonably determined by the Borrower or the Agent, if requested by the Borrower or the Agent, shall deliver such documentation (including Form W-9) prescribed by applicable law or reasonably requested by the Borrower or the Agent as will enable the Borrower or the Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. In addition, each Foreign Lender agrees to use reasonable efforts (consistent with the legal and regulatory restrictions and subject to overall policy considerations of such Lender) to file any certificate or document or to furnish deliver to the Borrower and the Agent on or prior to the Effective Date (i) two accurate and complete original signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under an income tax treaty) (or successor forms) certifying to such Foreign Lender’s entitlement as of such date to a complete exemption from United States withholding tax with respect to payments to be made under this Agreement and under any informationNote, or (ii) if the Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under an income tax treaty) (or any successor forms) pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit D (any such certificate, a “Section 5.04(b)(ii) Certificate”) and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio interest exemption) (or successor form) certifying to such Foreign Lender’s entitlement as of such date to a complete exemption from United States withholding tax with respect to payments of interest to be made under this Agreement and under any Note. In addition, each Foreign Lender shall (and shall cause other persons acting on its behalf to) take any reasonable action (including entering into an agreement with the Internal Revenue Service) to comply with any information gathering and reporting requirements, in each case, as reasonably requested that are required to obtain the maximum available exemption from United States federal withholding taxes under FATCA with respect to payments received by or on behalf of such Foreign Lender. In addition, each Foreign Lender agrees that from time to time after the Effective Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, such Foreign Lender will deliver to the Borrower that and the Agent two new accurate and complete original signed copies of Internal Revenue Service Form W-8ECI, Form W-8BEN (with respect to the benefits of any income tax treaty), or Form W-8BEN (with respect to the portfolio interest exemption) and a Section 5.04(b)(ii) Certificate, as the case may be, and such other forms as may be necessary required in order to confirm or establish any available the entitlement of such Foreign Lender to a continued exemption from, from or reduction in United States withholding tax with respect to payments under this Agreement and any Note, or such Foreign Lender shall immediately notify the amount ofBorrower and the Agent of its inability to deliver any such Form or Certificate, in which case such Foreign Lender shall not be required to deliver any Taxes; providedsuch Form or Certificate pursuant to this Section 5.04(b). Notwithstanding anything to the contrary contained in Section 5.04(a), howeverbut subject to Section 14.04(b) and the immediately succeeding sentence, (x) the Borrower shall be entitled, to the extent it is required to do so by law, to deduct or withhold Taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein) from interest, Fees or other amounts payable hereunder for the account of any Foreign Lender to the extent that such Foreign Lender has not provided to the Borrower U.S. Internal Revenue Service Forms and the Section 5.04(b)(ii) Certificate, as applicable, that nothing establish a complete exemption from such deduction or withholding and (y) the Borrower shall not be obligated pursuant to Section 5.04(a) to gross-up payments to be made to a Foreign Lender in respect of Taxes imposed by the United States if (I) such Foreign Lender has not provided to the Borrower the Internal Revenue Service Forms and the Section 5.04(b)(ii) Certificate, as applicable, required to be provided to the Borrower pursuant to this Section 5.04(b) shall require or (II) in the case of a payment, other than interest, to a Foreign Lender described in clause (ii) above, to disclose the extent that such Forms do not establish a complete exemption from withholding of such Taxes. Notwithstanding anything to the contrary contained in the preceding sentence or elsewhere in this Section 5.04 and except as set forth in Section 14.04(b), the Borrower agrees to pay any confidential information (includingadditional amounts and to indemnify each Foreign Lender with respect to Taxes in the manner set forth in Section 5.04(a) in respect of any amounts deducted or withheld by it as described in the immediately preceding sentence as a result of any changes that are effective after the Effective Date in any applicable law, without limitationtreaty, its tax returns governmental rule, regulation, guideline or its calculations)order, or in the interpretation thereof, relating to the deducting or withholding of Taxes.
(c) If the Administrative Agent or a Lender determines, in its sole discretion, that it has received a refund of any Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 5.04, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant jurisdiction or any political subdivision or taxing authority thereof with respect to such refund), provided, however, that (i) the Administrative Agent or Lender, as the case may be, may determine, in its sole discretion consistent with the policies of the Administrative Agent or Lender, as the case may be, whether to seek a refund; and (ii) the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant jurisdiction or any political subdivision or taxing authority thereof) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such jurisdiction or any political subdivision or taxing authority thereof. This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information that it deems confidential) to the Borrower or any other Person.
Appears in 1 contract
Samples: Senior Secured, Super Priority Debtor in Possession Credit Agreement (Trico Marine Services Inc)
Net Payments; Taxes. (a) All payments made by any Credit Party hereunder or under any other Credit Document will be made without setoff, counterclaim or other defense. Except as provided in Section 5.04(b), all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (ia) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed (in lieu of net income taxes), by the jurisdiction (or any political subdivision or taxing authority thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (iib) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the principal principle office or applicable lending office of the Administrative Agent or the Lender, as the case may be, is locatedlocated , and (iii) in the case of a Non-US Foreign Lender, any withholding tax that is imposed on amounts payable to such Non-US Foreign Lender at the time such Non-US Foreign Lender designates a new lending office or is attributable to such Non-US Foreign Lender’s failure to comply with Section 5.04(b), except to the extent that such Non-US Foreign Lender was entitled at the time of the designation of the new lending office to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 5.04(a) (collectively, the “Excluded Taxes”)), and all interest, penalties or similar liabilities with respect to such non-Excluded Taxesexcluded taxes, levies, imposts, duties, fees, assessments or other charges (all such non-Excluded Taxesexcluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”). If any Taxes are required to be deducted or withheld, the Borrower agrees to pay the full amount of such Taxes, and such additional amounts as may be necessary so that every payment under this Agreement or under any Revolving Note, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Revolving Note. The Borrower will furnish to the Administrative Agent as soon as practicable after the date the payment of any Taxes is due pursuant to applicable law certified copies of tax receipts or other evidence of such payment reasonably acceptable to the Administrative Agent. The Borrower agrees to indemnify and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Taxes so levied or imposed and paid by such Lender; provided that, no Lender shall be indemnified for any Taxes hereunder unless such Lender shall make written demand on the Borrower for reimbursement hereunder no later than 180 days after the earlier of (i) the date on which such Lender makes payment of such Taxes and (ii) the date on which the relevant jurisdiction or any political subdivision or taxing authority thereof makes initial written demand upon such Lender for payment of such Taxes.
(b) Each Lender agrees to use reasonable efforts that is not an “exempt recipient” (consistent with as such term is defined in Section 1.6049-4(c)(1)(ii) in the legal and regulatory restrictions and subject to overall policy considerations of such Lender) to file any certificate or document or to furnish to United States Treasury Regulations), as reasonably determined by the Borrower any informationor the Administrative Agent, in each caseif requested by the Borrower or the Administrative Agent, as shall deliver such documentation (including Form W-9) prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. In addition, each Foreign Lender agrees to deliver to the Borrower and the Administrative Agent on or prior to the Original Effective Date (i) two accurate and complete original signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under an income tax treaty) (or successor forms) certifying to such Foreign Lender’s entitlement as of such date to a complete exemption from United States withholding tax with respect to payments to be made under this Agreement and under any Revolving Note, or (ii) if the Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under an income tax treaty) (or any successor forms) pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit D (any such certificate, a “Section 5.04(b)(ii) Certificate”) and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio interest exemption) (or successor form) certifying to such Foreign Lender’s entitlement as of such date to a complete exemption from United States withholding tax with respect to payments of interest to be made under this Agreement and under any Revolving Note. In addition, each Foreign Lender agrees that from time to time after the Original Effective Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, such Foreign Lender will deliver to the Borrower and the Administrative Agent two new accurate and complete original signed copies of Internal Revenue Service Form W-8ECI, Form W-8BEN (with respect to the benefits of any income tax treaty), or Form W-8BEN (with respect to the portfolio interest exemption) and a Section 5.04(b)(ii) Certificate, as the case may be, and such other forms as may be necessary required in order to confirm or establish any available the entitlement of such Foreign Lender to a continued exemption from, from or reduction in United States withholding tax with respect to payments under this Agreement and any Revolving Note, or such Foreign Lender shall immediately notify the amount ofBorrower and the Administrative Agent of its inability to deliver any such Form or Certificate, in which case such Foreign Lender shall not be required to deliver any Taxes; providedsuch Form or Certificate pursuant to this Section 5.04(b). Notwithstanding anything to the contrary contained in Section 5.04(a), howeverbut subject to Section 14.04(b) and the immediately succeeding sentence, (x) the Borrower shall be entitled, to the extent it is required to do so by law, to deduct or withhold Taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein) from interest, Fees or other amounts payable hereunder for the account of any Foreign Lender to the extent that such Foreign Lender has not provided to the Borrower U.S. Internal Revenue Service Forms and the Section 5.04(b)(ii) Certificate, as applicable, that nothing establish a complete exemption from such deduction or withholding and (y) the Borrower shall not be obligated pursuant to Section 5.04(a) to gross-up payments to be made to a Foreign Lender in respect of Taxes imposed by the United States if (I) such Foreign Lender has not provided to the Borrower the Internal Revenue Service Forms and the Section 5.04(b)(ii) Certificate, as applicable, required to be provided to the Borrower pursuant to this Section 5.04(b) shall require or (II) in the case of a payment, other than interest, to a Foreign Lender described in clause (ii) above, to disclose the extent that such Forms do not establish a complete exemption from withholding of such Taxes. Notwithstanding anything to the contrary contained in the preceding sentence or elsewhere in this Section 5.04 and except as set forth in Section 14.04(b), the Borrower agrees to pay any confidential information (includingadditional amounts and to indemnify each Foreign Lender with respect to Taxes in the manner set forth in Section 5.04(a) in respect of any amounts deducted or withheld by it as described in the immediately preceding sentence as a result of any changes that are effective after the Original Effective Date in any applicable law, without limitationtreaty, its tax returns governmental rule, regulation, guideline or its calculations)order, or in the interpretation thereof, relating to the deducting or withholding of Taxes.
(c) If the Administrative Agent or a Lender determines, in its sole discretion, that it has received a refund of any Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 5.04, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant jurisdiction or any political subdivision or taxing authority thereof with respect to such refund), provided, however, that (i) the Administrative Agent or Lender, as the case may be, may determine, in its sole discretion consistent with the policies of the Administrative Agent or Lender, as the case may be, whether to seek a refund; and (ii) the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant jurisdiction or any political subdivision or taxing authority thereof) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such jurisdiction or any political subdivision or taxing authority thereof. This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information that it deems confidential) to the Borrower or any other Person.
Appears in 1 contract
Net Payments; Taxes. (a) All payments made by any Credit Party hereunder or under any other Credit Document will be made without setoff, counterclaim or other defense. Except as provided in Section 5.04(b), all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (i) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed (in lieu of net income taxes), by the jurisdiction (or any political subdivision or taxing authority thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (ii) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the principal principle office or applicable lending office of the Administrative Agent or the Lender, as the case may be, is locatedlocated , and (iii) in the case of a Non-US Foreign Lender, any withholding tax that is imposed on amounts payable to such Non-US Foreign Lender at the time such Non-US Foreign Lender designates a new lending office or is attributable to such Non-US Foreign Lender’s failure to comply with Section 5.04(b), except to the extent that such Non-US Foreign Lender was entitled at the time of the designation of the new lending office to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 5.04(a) (collectively, the “Excluded Taxes”)), and all interest, penalties or similar liabilities with respect to such non-Excluded Taxesexcluded taxes, levies, imposts, duties, fees, assessments or other charges (all such non-Excluded Taxesexcluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”). If any Taxes are required to be deducted or withheld, the Borrower agrees to pay the full amount of such Taxes, and such additional amounts as may be necessary so that every payment under this Agreement or under any Revolving Note, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Revolving Note. The Borrower will furnish to the Administrative Agent as soon as practicable after the date the payment of any Taxes is due pursuant to applicable law certified copies of tax receipts or other evidence of such payment reasonably acceptable to the Administrative Agent. The Borrower agrees to indemnify and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Taxes so levied or imposed and paid by such Lender; provided that, no Lender shall be indemnified for any Taxes hereunder unless such Lender shall make written demand on the Borrower for reimbursement hereunder no later than 180 days after the earlier of (i) the date on which such Lender makes payment of such Taxes and (ii) the date on which the relevant jurisdiction or any political subdivision or taxing authority thereof makes initial written demand upon such Lender for payment of such Taxes.
(b) Each Lender agrees to use reasonable efforts that is not an “exempt recipient” (consistent with as such term is defined in Section 1.6049-4(c)(1)(ii) in the legal and regulatory restrictions and subject to overall policy considerations of such Lender) to file any certificate or document or to furnish to United States Treasury Regulations), as reasonably determined by the Borrower any informationor the Administrative Agent, in each caseif requested by the Borrower or the Administrative Agent, as shall deliver such documentation (including Form W-9) prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. In addition, each Foreign Lender agrees to deliver to the Borrower and the Administrative Agent on or prior to the Effective Date (i) two accurate and complete original signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under an income tax treaty) (or successor forms) certifying to such Foreign Lender’s entitlement as of such date to a complete exemption from United States withholding tax with respect to payments to be made under this Agreement and under any Revolving Note, or (ii) if the Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under an income tax treaty) (or any successor forms) pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit D (any such certificate, a “Section 5.04(b)(ii) Certificate”) and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio interest exemption) (or successor form) certifying to such Foreign Lender’s entitlement as of such date to a complete exemption from United States withholding tax with respect to payments of interest to be made under this Agreement and under any Revolving Note. In addition, each Foreign Lender agrees that from time to time after the Effective Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, such Foreign Lender will deliver to the Borrower and the Administrative Agent two new accurate and complete original signed copies of Internal Revenue Service Form W-8ECI, Form W-8BEN (with respect to the benefits of any income tax treaty), or Form W-8BEN (with respect to the portfolio interest exemption) and a Section 5.04(b)(ii) Certificate, as the case may be, and such other forms as may be necessary required in order to confirm or establish any available the entitlement of such Foreign Lender to a continued exemption from, from or reduction in United States withholding tax with respect to payments under this Agreement and any Revolving Note, or such Foreign Lender shall immediately notify the amount ofBorrower and the Administrative Agent of its inability to deliver any such Form or Certificate, in which case such Foreign Lender shall not be required to deliver any Taxes; providedsuch Form or Certificate pursuant to this Section 5.04(b). Notwithstanding anything to the contrary contained in Section 5.04(a), howeverbut subject to Section 14.04(b) and the immediately succeeding sentence, (x) the Borrower shall be entitled, to the extent it is required to do so by law, to deduct or withhold Taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein) from interest, Fees or other amounts payable hereunder for the account of any Foreign Lender to the extent that such Foreign Lender has not provided to the Borrower U.S. Internal Revenue Service Forms and the Section 5.04(b)(ii) Certificate, as applicable, that nothing establish a complete exemption from such deduction or withholding and (y) the Borrower shall not be obligated pursuant to Section 5.04(a) to gross-up payments to be made to a Foreign Lender in respect of Taxes imposed by the United States if (I) such Foreign Lender has not provided to the Borrower the Internal Revenue Service Forms and the Section 5.04(b)(ii) Certificate, as applicable, required to be provided to the Borrower pursuant to this Section 5.04(b) shall require or (II) in the case of a payment, other than interest, to a Foreign Lender described in clause (ii) above, to disclose the extent that such Forms do not establish a complete exemption from withholding of such Taxes. Notwithstanding anything to the contrary contained in the preceding sentence or elsewhere in this Section 5.04 and except as set forth in Section 14.04(b), the Borrower agrees to pay any confidential information (includingadditional amounts and to indemnify each Foreign Lender with respect to Taxes in the manner set forth in Section 5.04(a) in respect of any amounts deducted or withheld by it as described in the immediately preceding sentence as a result of any changes that are effective after the Effective Date in any applicable law, without limitationtreaty, its tax returns governmental rule, regulation, guideline or its calculations)order, or in the interpretation thereof, relating to the deducting or withholding of Taxes.
(c) If the Administrative Agent or a Lender determines, in its sole discretion, that it has received a refund of any Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 5.04, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant jurisdiction or any political subdivision or taxing authority thereof with respect to such refund), provided, however, that (i) the Administrative Agent or Lender, as the case may be, may determine, in its sole discretion consistent with the policies of the Administrative Agent or Lender, as the case may be, whether to seek a refund; and (ii) the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant jurisdiction or any political subdivision or taxing authority thereof) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such jurisdiction or any political subdivision or taxing authority thereof. This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information that it deems confidential) to the Borrower or any other Person.
Appears in 1 contract
Net Payments; Taxes. (a) All payments made by any Credit Party the Borrower hereunder ------------------- or under any other Credit Document Note will be made without setoff, counterclaim or other defense. Except as provided in Section 5.04(b3.04(b), all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, with respect to except as provided in the Administrative Agentsecond succeeding sentence, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (i) taxes tax imposed on or measured by its overall the net income (however denominated)or net profits of a Bank, and or any franchise taxes imposed (in lieu of tax based on the net income taxes)or net profits of a Bank, by the jurisdiction (or any political subdivision or taxing authority thereof) under in either case pursuant to the laws of the jurisdiction in which such recipient Bank is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (ii) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the principal office or applicable lending office of the Administrative Agent such Bank is located or the Lender, as the case may be, is located, and (iiiany subdivision thereof or therein) in the case of a Non-US Lender, any withholding tax that is imposed on amounts payable to such Non-US Lender at the time such Non-US Lender designates a new lending office or is attributable to such Non-US Lender’s failure to comply with Section 5.04(b), except to the extent that such Non-US Lender was entitled at the time of the designation of the new lending office to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 5.04(a) (collectively, the “Excluded Taxes”)), and all interest, penalties or similar liabilities with respect to such non-Excluded Taxesexcluded taxes, levies, imposts, duties, fees, assessments fees or other charges (all such non-Excluded Taxesexcluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “"Taxes”"). If any Taxes are required to be deducted so levied or withheldimposed, the Borrower agrees to pay the full amount of such Taxes, and such additional amounts as may be necessary so that every payment of all amounts due under this Agreement or under any Note, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Note. If any amounts are payable in respect of Taxes pursuant to the preceding sentence, the Borrower agrees to reimburse each Bank, upon the written request of such Bank, for taxes imposed on or measured by the net income or net profits of such Bank, or any franchise tax based on the net income or net profits of a Bank, in either case pursuant to the laws of the jurisdiction in which such Bank is organized or in which the principal office or applicable lending office of such Bank is located or under the laws of any political subdivision or taxing authority of any such jurisdiction in which such Bank is organized or in which the principal office or applicable lending office of such Bank is located and for any withholding of income or similar taxes imposed by the United States of America as such Bank shall reasonably determine are payable by, or withheld from, such Bank in respect of such amounts so paid to or on behalf of such Bank pursuant to the preceding sentence and in respect of any amounts paid to or on behalf of such Bank pursuant to this sentence. The Borrower will furnish to the Administrative Agent as soon as practicable within 45 days after the date the payment of any Taxes is due pursuant to applicable law certified copies of tax receipts or other evidence of such payment documentation reasonably acceptable to the Administrative Agent, evidencing such payment by the Borrower. The Borrower agrees to indemnify and hold harmless each LenderBank, and reimburse such Lender Bank upon its written request, for the amount of any Taxes so levied or imposed and paid by such Lender; provided that, no Lender shall be indemnified for any Taxes hereunder unless such Lender shall make written demand on the Borrower for reimbursement hereunder no later than 180 days after the earlier of (i) the date on which such Lender makes payment of such Taxes and (ii) the date on which the relevant jurisdiction or any political subdivision or taxing authority thereof makes initial written demand upon such Lender for payment of such TaxesBank.
(b) Each Lender Bank that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) agrees to use reasonable efforts (consistent with the legal and regulatory restrictions and subject to overall policy considerations of such Lender) to file any certificate or document or to furnish deliver to the Borrower any information, in each case, as reasonably requested by the Borrower that may be necessary to establish any available exemption from, or reduction in the amount of, any Taxes; provided, however, that nothing in this Section 5.04(b) shall require a Lender to disclose any confidential information (including, without limitation, its tax returns or its calculations).
(c) If and the Administrative Agent on or prior to the Effective Date, or in the case of a Lender determinesBank that is an assignee or transferee of an interest under this Agreement pursuant to Section 1.13 or 12.04 (unless the respective Bank was already a Bank hereunder immediately prior to such assignment or transfer), in its sole discretionon the date of such assignment or transfer to such Bank, that it has received a refund (i) two accurate and complete original signed copies of any Taxes as to which it has been indemnified by the Borrower Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to which a complete exemption under an income tax treaty) (or successor forms) certifying to such Bank's entitlement as of such date to a complete exemption from United States withholding tax with respect to
(a) to gross-up payments to be made to a Bank in respect of income or similar taxes imposed by the United States if (I) such Bank has not provided to the Borrower has paid additional amounts the Internal Revenue Service Forms required to be provided to the Borrower pursuant to this Section 5.043.04(b) or (II) in the case of a payment, it shall pay other than interest, to the Borrower an amount equal to such refund a Bank described in clause (but only ii) above, to the extent that such Forms do not establish a complete exemption from withholding of indemnity payments madesuch taxes. Notwithstanding anything to the contrary contained in the preceding sentence or elsewhere in this Section 3.04 and except as set forth in Section 12.04(b), the Borrower agrees to pay additional amounts and to indemnify each Bank in the manner set forth in Section 3.04(a) (without regard to the identity of the jurisdiction requiring the deduction or withholding) in respect of any Taxes deducted or withheld by it as described in the immediately preceding sentence as a result of any changes that are effective after the Effective Date in any applicable law, treaty, governmental rule, regulation, guideline or order, or additional amounts paidin the interpretation thereof, by the Borrower under this Section with respect relating to the Taxes giving rise to deducting or withholding of such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant jurisdiction or any political subdivision or taxing authority thereof with respect to such refund), provided, however, that (i) the Administrative Agent or Lender, as the case may be, may determine, in its sole discretion consistent with the policies of the Administrative Agent or Lender, as the case may be, whether to seek a refund; and (ii) the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant jurisdiction or any political subdivision or taxing authority thereof) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such jurisdiction or any political subdivision or taxing authority thereof. This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information that it deems confidential) to the Borrower or any other PersonTaxes.
Appears in 1 contract
