Net Payments. (a) All payments made by the US Borrower and the UK Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) Each Non-U.S. Lender shall: (i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 2 contracts

Sources: Credit Agreement (Rockwood Specialties Group Inc), Credit Agreement (Rockwood Holdings, Inc.)

Net Payments. (a) All payments made by ~~the US Borrower and the UK Borrower~~ Borrowers hereunder or under ~~this Agreement~~ any Loan Document shall be made without setoff, counterclaim, or other defense. To the extent permitted by applicable law, all payments hereunder and under any Loan Document (including, without limitation, any payment of principal, interest, or fees) to, or for the benefit, of any Person shall be made by Borrowers free and clear ~~of,~~ of and without deduction or withholding ~~for~~ for, or on account of, any ~~current~~ tax, duty, levy, impost, deduction, charge, withholding, or ~~future income~~assessment now or hereinafter imposed by any Governmental Authority. (b) If any Borrower makes any payment hereunder or under any Loan Document in respect of which it is required by law to deduct or withhold any Taxes, ~~stamp~~ such Borrower shall increase the payment hereunder or ~~other~~ under any such Loan Document such that after the reduction for the amount of Taxes withheld (and any taxes withheld or imposed with respect to the additional payments required under this Section 2.8(b)) the amount paid to the Lender or Administrative Agent equals the amount that was payable hereunder or under any such Loan Document without regard to this Section 2.8(b). To the extent any Borrower withholds any taxes, duties, levies, imposts, ~~duties~~deductions, charges, ~~fees, deductions or~~ withholdings, ~~now~~ or ~~hereafter imposed~~assessments on payments hereunder or under any Loan Document, ~~levied~~such Borrower shall pay the full amount deducted to the relevant Governmental Authority within the time allowed for payment under applicable law and shall deliver to the Administrative Agent within 30 days after it has made payment to such authority a receipt issued by such authority (or other evidence satisfactory to the Administrative Agent) evidencing the payment of all amounts so required to be deducted or withheld from such payment. (c) If any Lender or Administrative Agent is required by law to make any payments of any Taxes on or in relation to any amounts received or receivable hereunder or under any other Loan Document, ~~collected~~or any Tax is assessed against a Lender or Administrative Agent with respect to amounts received or receivable hereunder or under any other Loan Document, ~~withheld or assessed by any Governmental Authority, excluding~~ each Borrower will indemnify such person against (i) ~~net income taxes~~ such Tax (and ~~franchise taxes (imposed in lieu of net income taxes~~any reasonable counsel fees and expenses associated with such Tax) ~~imposed on the Administrative Agent or any Lender~~ and (ii) any ~~taxes~~ Taxes imposed ~~on the Administrative Agent or any Lender~~ as a result of ~~a current or former connection between~~ the ~~Administrative Agent or such Lender and the jurisdiction~~ receipt of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment ~~under, or enforced,~~ under this ~~Agreement~~Section 2.8(c). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or A certificate prepared in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, good faith as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) Each Non-U.S. Lender shall: (i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such ~~Lender or Administrative Agent, as the case may be, is attributable to such~~ payment ~~made~~ by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent ~~shall claim any refund that it determines is available to it~~shall, ~~unless it concludes in its reasonable discretion that it would~~ absent manifest error, be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4final, conclusive, and binding on all parties. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 2 contracts

Sources: Revolving Credit Agreement (Texas Petrochemicals Inc.), Revolving Credit Agreement (Texas Petrochemicals Inc.)

Net Payments. (a) All payments made by ~~the US Borrower and the UK Borrower~~ Company hereunder or under ~~this Agreement~~ any Loan Document shall be made without setoff, counterclaim, or other defense. To the extent permitted by applicable law, all payments hereunder and under any Loan Document (including, without limitation, any payment of principal, interest, or fees) to, or for the benefit, of any Person shall be made by Company free and clear ~~of,~~ of and without deduction or withholding ~~for~~ for, or on account of, any ~~current~~ tax, duty, levy, impost, deduction, charge, withholding, or ~~future income~~assessment now or hereinafter imposed by any Governmental Authority. (b) If Company makes any payment hereunder or under any Loan Document in respect of which it is required by law to deduct or withhold any Taxes, ~~stamp~~ Company shall increase the payment hereunder or ~~other~~ under any such Loan Document such that after the reduction for the amount of Taxes withheld (and any taxes withheld or imposed with respect to the additional payments required under this Section 4.6(b)) the amount paid to the Lender or Administrative Agent equals the amount that was payable hereunder or under any such Loan Document without regard to this Section 4.6(b). To the extent Company withholds any taxes, duties, levies, imposts, ~~duties~~deductions, charges, ~~fees, deductions or~~ withholdings, ~~now~~ or ~~hereafter imposed~~assessments on payments hereunder or under any Loan Document, ~~levied~~Company shall pay the full amount deducted to the relevant Governmental Authority within the time allowed for payment under applicable law and shall deliver to Administrative Agent within 30 days after it has made payment to such authority a receipt issued by such authority (or other evidence satisfactory to Administrative Agent) evidencing the payment of all amounts so required to be deducted or withheld from such payment. (c) If any Lender or Administrative Agent is required by law to make any payments of any Taxes on or in relation to any amounts received or receivable hereunder or under any other Loan Document, ~~collected~~or any Tax is assessed against a Lender or Administrative Agent with respect to amounts received or receivable hereunder or under any other Loan Document, ~~withheld or assessed by any Governmental Authority, excluding~~ Company will indemnify such person against (i) ~~net income taxes~~ such Tax (and ~~franchise taxes (imposed in lieu of net income taxes~~any reasonable counsel fees and expenses associated with such Tax) ~~imposed on the Administrative Agent or any Lender~~ and (ii) any taxes imposed ~~on the Administrative Agent or any Lender~~ as a result of ~~a current~~ the receipt of the payment under this Section 4.6(c). A certificate prepared in good faith as to the amount of such payment by Lender or ~~former connection between the~~ Administrative Agent ~~or such Lender~~ shall, absent manifest error, be final, conclusive, and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of binding on all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunderparties. ~~(b) Each Non-U.S. Lender shall:~~ (i) To the extent permitted by applicable law, each Lender that is a Non-U.S. Participant shall deliver to ~~the US Borrower~~ Company and ~~the~~ Administrative Agent ~~two copies of either~~ on or prior to the Closing Date (x) or in the case of a Lender that is an Assignee, on the date of such assignment to such Lender) two accurate and complete original signed copies of IRS Form W-8BEN, W-8ECI, or W-8IMY (or any successor or other applicable form prescribed by the IRS) certifying to such Lender’s entitlement to a complete exemption from, or a reduced rate in, United States withholding tax on interest payments to be made under this Agreement or any Note. If a Lender that is a Non-U.S. ~~Lender~~ Participant is claiming a complete exemption from ~~U.S. Federal~~ withholding ~~tax under Section 871(h) or 881(c) of the Code with respect~~ on interest pursuant to ~~payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of~~ Section 881(c) of the Code, the Lender shall deliver (along with two accurate and complete original signed copies of IRS Form W-8BEN) a certificate substantially in the form of Exhibit 4.6(d) (any such certificate, a “Section 4.6(d)(i) Certificate”). In addition, each Lender that is a Non-U.S. Participant agrees that from time to time after the Closing Date, (or in the case of a Lender that is an Assignee, after the date of the assignment to such Lender), when a lapse in time (or change in circumstances occurs) renders the prior certificates hereunder obsolete or inaccurate in any material respect, such Lender shall, to the extent permitted under applicable law, deliver to Company and Administrative Agent two new and accurate and complete original signed copies of an IRS Form W-8BEN, W-8ECI, or W-8IMY (or any successor or other applicable forms prescribed by the IRS), and if applicable, a new Section 4.6(d)(i) Certificate, to confirm or establish the entitlement to such Lender or Agent to an exemption from, or reduction in, United States withholding tax on interest payments to be made under this Agreement or any Note. (ii) Each Lender that is not a 10Non-~~percent shareholder~~ U.S. Participant (~~within the meaning of Section 871(h)(3)(B~~other than any such Lender which is taxed as a corporation for U.S. federal income tax purposes) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case shall provide two properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of ~~any such form or certification~~ IRS Form W-9 (or any successor or other applicable ~~successor~~ form) ~~on or before the date that any such form or certification expires or becomes obsolete~~ to Company and ~~after the occurrence of any event requiring a change in the most recent form previously delivered by it~~ Administrative Agent certifying to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender or Agent is exempt from ~~duly completing and delivering any such~~ United States backup withholding tax. To the extent that a form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required provided pursuant to this Section ~~5.4(b); provided, that~~ 4.6(d)(ii) is rendered obsolete or inaccurate in ~~the case~~ any material respects as result of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, change in ~~respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts~~ circumstances with respect to ~~U.S. Federal withholding tax existed on~~ the ~~date such Non-U.S. Lender became a party to this Agreement (or, in the case~~ status of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, ~~as the case may be, is attributable to~~ such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent ~~shall claim any refund that it determines is available~~ shall, to itthe extent permitted by applicable law, ~~unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the~~ deliver to Company and Administrative Agent ~~shall be obliged~~ revised forms necessary to ~~disclose any information regarding its tax affairs~~ confirm or ~~computations to~~ establish the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented entitlement to such ~~arrangement prior thereto~~Lender’s or Administrative Agent’s exemption from United States backup withholding tax.

Appears in 2 contracts

Sources: Term Loan Agreement (Texas Petrochemicals Inc.), Term Loan Agreement (Texas Petrochemicals Inc.)

Net Payments. (a) ~~All~~ Any and all payments made by or on behalf of the US Borrower ~~and the UK Borrower~~ or any Guarantor under this Agreement or any other Loan Document shall be made free and clear of, and without deduction or withholding for or on account of, any ~~current~~ Taxes; provided that if any applicable Withholding Agent shall determine (in such Withholding Agent’s good faith discretion) that it is or ~~future income~~may be required by applicable Requirements of Law to deduct or withhold any Taxes from such payments, ~~stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding~~ then (i) ~~net income taxes~~ the applicable Withholding Agent may make such deductions or withholdings as are determined by the applicable Withholding Agent in such Withholding Agent’s good faith discretion to be required by any applicable Requirement of Law, (ii) the applicable Withholding Agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Requirements of Law, and ~~franchise taxes~~ (~~imposed in lieu~~ iii) to the extent withholding or deduction is required to be made on account of ~~net income taxes~~Indemnified Taxes or Other Taxes, the sum payable by the Borrower or such Guarantor shall be increased as necessary so that after all required deductions and withholdings have been made (including deductions or withholdings applicable to additional sums payable under this Section 2.17) ~~imposed on~~ the Administrative Agent, the Collateral Agent or the applicable Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made. After any payment of Taxes by any Credit Party or the Administrative Agent ~~or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as~~ to a ~~result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the~~ Governmental Authority ~~imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from~~ as provided in this Section 2.17, the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are required to be withheld from any amounts payable Borrower shall deliver to the Administrative Agent or ~~any Lender hereunder, the amounts so payable to~~ the Administrative Agent ~~or such Lender~~ shall ~~be increased~~ deliver to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, ~~as promptly as possible thereafter~~ the original or a certified copy of a receipt issued by such ~~US Borrower~~ Governmental Authority evidencing such payment, a copy of any return required by law to report such payment or ~~UK Borrower shall send~~ other evidence of such payment reasonably satisfactory to the Borrower, the Administrative Agent ~~for its own account~~ or the applicable Lenders, as the case may be. (b) The Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable Requirements of Law, or at the option of the Administrative Agent timely reimburse it for the ~~account~~ payment of any Other Taxes (whether or not such Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority). (c) The Borrower shall indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender within ten (10) Business Days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes imposed on the Administrative Agent, the Collateral Agent or such Lender, as the case may bebe (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.17), and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth in reasonable detail the basis and calculation of the amount of such payment or liability delivered to the Borrower by a ~~certified copy of an original official receipt (or other evidence acceptable to such~~ Lender, ~~acting reasonably~~the Administrative Agent or the Collateral Agent (as applicable) ~~received~~ on its own behalf or on behalf of a Lender shall be conclusive absent manifest error. (d) Each Lender shall deliver to the Borrower and the Administrative Agent, at such time or times reasonably requested by ~~such US~~ the Borrower or the ~~UK Borrower showing payment thereof. In addition~~Administrative Agent, if such properly completed and executed documentation prescribed by applicable law and such other reasonably requested information as will permit the US Borrower or the ~~UK Borrower~~Administrative Agent, as the case may be, ~~fails~~ to ~~pay~~ determine (A) whether or not any ~~Non-Excluded~~ payments made hereunder or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes ~~when due~~ in respect of any payments to be made to such Lender by any Credit Party pursuant to any Loan Document or otherwise to establish such Lender’s status for withholding tax purposes in the ~~appropriate taxing authority~~ applicable jurisdiction. In addition, any Lender, if requested by the Borrower or ~~fails to remit to~~ the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the ~~required receipts or other required documentary evidence, the US~~ Borrower or the ~~UK Borrower~~Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than as ~~the case may be~~required pursuant to Section 2.17(e)(i)(A), (B) or (C)), shall ~~indemnify~~ not be required if in the ~~Administrative Agent and~~ Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the ~~Lenders for any incremental taxes, interest, costs~~ legal or ~~penalties that may become payable by the Administrative Agent or any Lender as a result~~ commercial position of ~~any~~ such ~~failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder~~Lender. (be) ~~Each~~ Without limiting the generality of Section 2.17(d), each Non-U.S. Lender with respect to any Loan made to the Borrower shall, to the extent it is legally eligible to do so: (i) deliver to the US Borrower and the Administrative ~~Agent~~ Agent, on or prior to the date on which such Lender becomes a Lender under this Agreement, two copies of ~~either~~ (xA) in the case of a Non-U.S. Lender claiming exemption from U.S. ~~Federal~~ federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, ~~United States Internal Revenue Service~~ IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable (or any applicable successor form) (together with a certificate substantially in the form of Exhibit D-1, Exhibit D-2, Exhibit D-3 or Exhibit D-4 hereto, as applicable (a “Non-Bank Tax Certificate”), representing that such Non-U.S. Lender is not a bank for purposes of Section ~~881(c~~881(c)(3)(A) of the Code, is not a ~~10-~~“10 percent ~~shareholder~~ shareholder” (within the meaning of Section ~~871(h)(3)(B~~881(c)(3)(B) of the Code) of the ~~US Borrower and~~ Borrower, is not a ~~controlled foreign corporation~~ CFC related to the US Borrower ~~(within the meaning of~~ as described in Section ~~864(d)(4~~881(c)(3)(C) of the Code)) and the interest payments in question are not effectively connected with the conduct by such Lender of a trade or business within the United States), or (yB) ~~Internal Revenue Service~~ IRS Form W-8BEN or IRS Form ~~W-8ECI~~W-8BEN-E, as applicable, or Form W-8ECI (or any applicable successor form), in each case properly completed and duly executed by such Non-U.S. Lender and, to the extent applicable, claiming complete exemption from, or reduced rate of, U.S. ~~Federal~~ federal withholding tax on payments by the US Borrower under this Agreement;, (C) IRS Form W-8IMY (or any applicable successor form) and all necessary attachments (including the forms described in clauses (A) and (B) above; provided that if the Non-U.S. Lender is a partnership and not a participating Lender, and one or more of the partners is claiming portfolio interest treatment, the Non-Bank Tax Certificate may be provided by such Non-U.S. Lender on behalf of such partners) or (D) any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower to determine the withholding or deduction required to be made; provided that such other form and supplementary documentation described in this clause (D) shall not be required if in the Lender’s reasonable 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; and (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) ~~on or before the date that any~~ promptly after such form or certification expires or becomes obsolete ~~and~~ or invalid, after the occurrence of any event requiring a material change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent, and from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent or promptly notify the Borrower and the Administrative Agent in writing of such Non-U.S. ▇▇▇▇▇▇’s inability to do so. Each Person that shall become a Participant pursuant to Section ~~14.6~~ 9.06 or a Lender pursuant to Section ~~14.6~~ 9.06 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section ~~5.4(b~~2.17(e); ~~provided,~~ provided that in the case of a Participant such Participant shall furnish all such required forms and statements to the ~~Lender~~ Person from which the related participation shall have been purchased. ~~Notwithstanding anything to the contrary~~In addition, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent ~~that~~ it is legally eligible to do so, each Agent shall deliver to the Borrower (ix)(I) prior to the ~~obligation~~ date on which the first payment by the Borrower is due hereunder or (II) prior to ~~withhold amounts with respect~~ the first date on or after the date on which such Agent becomes a successor Agent pursuant to Section 8.09 on which payment by the Borrower is due hereunder, as applicable, two copies of a properly completed and executed IRS Form W-9 certifying its exemption from U.S. Federal backup withholding ~~tax existed on the date such Non~~or a properly completed and executed applicable IRS Form W-8 certifying its non-U.S. ~~Lender became a party~~ status and its entitlement to ~~this Agreement (or~~any applicable treaty benefits, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or and (y) on or before the date on which any such ~~assignment~~previously delivered documentation expires or becomes obsolete or invalid, ~~participation or transfer had been requested by~~ after the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason occurrence of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to event requiring a change in the ~~Requirement~~ most recent documentation previously delivered by it to the Borrower, and from time to time if reasonably requested by the Borrower, two further copies of ~~Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date~~such documentation. (ef) If any Lender, the ~~US Borrower~~ Administrative Agent or the ~~UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative~~ Collateral Agent, as applicable, ~~shall cooperate with such US Borrower or UK Borrower~~ determines, in ~~challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent~~its sole discretion exercised in good faith, ~~as applicable, receives~~ that it has received a refund of ~~a tax~~ an Indemnified Tax or Other Tax for which ~~a payment~~ it has been ~~made by the US Borrower or the UK Borrower~~ indemnified pursuant to this ~~Agreement, which refund in~~ Section 2.17 (including by the ~~good faith judgment~~ payment of ~~such Lender or Administrative Agent, as the case may be, is attributable~~ additional amounts pursuant to ~~such payment made by such US Borrower or UK Borrower~~this Section 2.17), then the ~~Lender~~ Lender, the Administrative Agent or the ~~Administrative~~ Collateral Agent, as the case may be, shall reimburse ~~such US~~ the Borrower or ~~UK Borrower~~ such Guarantor for such amount (~~together with~~ net of all reasonable out-of-pocket expenses (including Taxes) of such Lender, the Administrative Agent or the Collateral Agent, as the case may be, and without interest other than any interest received ~~thereon~~thereon from the relevant Governmental Authority with respect to such refund) as the ~~Lender~~ Lender, Administrative Agent or ~~Administrative~~ the Collateral Agent, as the case may be, determines in its sole discretion exercised in good faith to be the proportion of the refund as will leave it, after such reimbursement, in no ~~better~~ worse net after-Tax position (taking into account expenses or ~~worse position~~ any Taxes imposed on the refund) than it would have been in if the ~~payment~~ Tax subject to indemnification and giving rise to such refund had not been ~~required. A Lender~~ deducted, withheld, or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid; provided that the Borrower or such Guarantor, upon the request of the Lender, the Administrative Agent ~~shall claim~~ or the Collateral Agent, agrees to repay the amount paid over to the Borrower or such Guarantor (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Lender, the Administrative Agent or the Collateral Agent in the event the Lender, the Administrative Agent or the Collateral Agent is required to repay such refund to such Governmental Authority. In such event, such Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall, at the Borrower’s request, provide the Borrower with a copy of any notice of assessment or other evidence of the requirement to repay such refund received from the relevant Governmental Authority (provided that such Lender, the Administrative Agent or the Collateral Agent may delete any information therein that it ~~determines is available to it~~deems confidential). None of the Lenders, ~~unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor~~ the Administrative Agent or the Collateral Agent shall be obliged to ~~disclose~~ make available its Tax returns (or any other information ~~regarding~~ relating to its ~~tax affairs or computations~~ Taxes that it deems confidential) to ~~the US Borrower or the UK Borrower~~ any Credit Party in connection with this ~~paragraph~~ clause (ef) or any other provision of this Section ~~5.4~~2.17. (fg) ~~Each~~ [Reserved]. (h) Without limiting the generality of Section 2.17(d), each U.S. Lender ~~represents~~ shall deliver to the Borrower and ~~agrees that~~the Administrative Agent two copies of an IRS Form W-9 (or substitute or successor form), properly completed and duly executed, certifying that such U.S. Lender is exempt from United States federal backup withholding (i) on or prior to the ~~Funding~~ Closing Date (or on or prior to the date it becomes a party to this Agreement), (ii) on or before the date that such form expires or becomes obsolete or invalid, (iii) after the occurrence of a change in the U.S. ▇▇▇▇▇▇’s circumstances requiring a change in the most recent form previously delivered by it to the Borrower and the Administrative Agent, and (iv) from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent. (i) If a payment made to any Lender or any Agent under this Agreement or any other Loan Document would be subject to U.S. federal withholding tax imposed by FATCA if such Lender or such Agent 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 or such Agent shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at ~~all~~ such time or times ~~during~~ reasonably requested by the ~~term~~ Borrower 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 the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has or has not complied with such ▇▇▇▇▇▇’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this Section 2.17(i), “FATCA” shall include any amendments made to FATCA after the date of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 2 contracts

Sources: Term Loan Credit Agreement (Virgin Orbit Holdings, Inc.), Term Loan Credit Agreement (Virgin Orbit Holdings, Inc.)

Net Payments. (a) All payments made by ~~the US Borrower and the UK Borrower~~ or on behalf of any Credit Party under this Agreement or any other Credit Document shall be made ~~free and clear of, and~~ without deduction or withholding for or on account ofof any Taxes, ~~any current or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed~~ except as required by any Governmental Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement)Applicable Law. If any ~~such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”)~~ Taxes are required to be withheld from any amounts payable by or on behalf of any Credit Party under this Agreement or any other Credit Document (as determined in the good faith discretion of the applicable withholding agent), then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the ~~Administrative Agent or any Lender hereunder~~relevant Governmental Authority in accordance with Applicable Law, and if such Tax is a Non-Excluded Tax, then the Borrower shall increase the amounts so payable to the ~~Administrative Agent or such Lender shall be increased~~ applicable Recipient to the extent necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to ~~yield~~ additional sums payable under this Section) the applicable Recipient receives an amount equal to the ~~Administrative Agent~~ sum it would have received had no such deduction or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4withholding been made. Whenever any ~~Non-Excluded~~ Taxes are ~~payable~~ paid by ~~the US Borrower or the UK Borrower~~a Credit Party pursuant to this Section 5.04(a), as soon as practicable thereafter, the ~~case may be, as promptly as possible thereafter such US Borrower or UK~~ Borrower shall send to the Administrative Agent ~~for its own account~~ the original or ~~for the account of such Lender, as the case may be,~~ a certified copy of ~~an original official~~ a receipt (issued by the relevant Governmental Authority, a copy of the return reporting such payment, or other evidence ~~acceptable~~ of such payment reasonably satisfactory to ~~such Lender, acting reasonably) received by such US~~ the Administrative Agent. The Borrower or shall indemnify the ~~UK Borrower showing payment thereof. In addition, if~~ Agents and the ~~US Borrower or the UK Borrower, as the case may be, fails to pay~~ Lenders for any Non-Excluded Taxes ~~when due~~ (including Non- Excluded Taxes imposed or asserted on or attributable to amounts payable under this Section 5.04(a)) that are paid by any Agent or Lender or that are required to be withheld or deducted from a payment to any Agent or Lender and any reasonable expenses arising therefrom or with respect thereto, whether or not such Non-Excluded Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority, within ten (10) days after demand therefor. A certificate as to the ~~appropriate taxing authority~~ amount of such payment or ~~fails~~ liability delivered to ~~remit~~ the Borrower by an Agent or Lender (with a copy to the Administrative ~~Agent the required receipts~~ Agent), or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. In addition, the Borrower shall pay any ~~Lender as a result~~ Other Taxes to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent, shall timely reimburse it for the payment of any ~~such failure~~Other Taxes. The agreements in this Section ~~5.4(a~~5.04(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (bi) Each ~~Non-U.S.~~ Lender ~~shall: (i) deliver~~ that is entitled to ~~the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming~~ an exemption from ~~U.S. Federal~~ or reduction of withholding ~~tax under Section 871(h) or 881(c) of the Code~~ Tax with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this ~~Agreement; (ii)~~ Agreement shall deliver to the US Borrower ~~and~~ (with a copy to the Administrative ~~Agent two further copies of any such form~~ Agent), at the time or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may times reasonably be requested by the US Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by Applicable Law or reasonably requested by the Borrower or Administrative Agent as will permit such payments to be made without withholding or at a reduced rate; ~~unless in any such case any change in treaty~~provided, ~~law or regulation has occurred prior to the date on which any such delivery would otherwise be required~~ that ~~renders any such form inapplicable or would prevent~~ such Lender ~~from duly completing~~ is legally entitled to complete, execute and ~~delivering~~ deliver such documentation. In addition, any ~~such form with respect to it and such Lender so advises~~ Lender, if reasonably requested by the US Borrower ~~and~~ or the Administrative Agent, shall deliver such other documentation 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. Each Person that shall become a Participant pursuant to Section ~~14.6~~ 13.06 or a Lender pursuant to Section ~~14.6~~ 13.06 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section ~~5.4(b~~5.04(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding ~~anything to the contrary~~any other provision of this paragraph, no Lender ~~or Participant~~ shall be required to deliver any form (other than such documentation required by Sections 5.04(b)(ii)(A)-(C) and (iii)) that in such Lender’s reasonable judgment would subject such Lender to any material unreimbursed cost or ~~certification that it is not legally able to deliver~~expense or would materially prejudice the legal or commercial position of such Lender. (cii) ~~The US Borrower~~ Without limiting the generality of the foregoing, (A) any Lender that is a “United States Person” as defined in Section 7701(a)(30) of the Code shall ~~not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above~~ deliver to the ~~extent that (i)~~ Borrower and the ~~obligation to withhold amounts with respect to U.S. Federal withholding tax existed~~ Administrative Agent on or about the date on which such ~~Non-U.S.~~ Lender ~~became~~ becomes a ~~party to~~ Lender under this Agreement (orand from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), ~~in the case~~ executed copies of ~~a Participant~~ IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax; (B) any Lender that is not ~~organized under the laws~~ a “United States Person” as defined in Section 7701(a)(30) of the ~~United States of America or a state thereof~~ Code (a “Non-U.S. ~~Participant~~Lender”)) shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall reasonably be requested) on or about the date on which such Non-U.S. ~~Participant became~~ Lender becomes a ~~Participant hereunder); provided, however, that~~ Lender under this ~~clause~~ Agreement (~~i) shall not apply~~ and from time to time thereafter upon the ~~extent that (x)~~ reasonable request of the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the ~~UK Borrower~~Administrative Agent), (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any whichever of the ~~representations or certifications made by~~ following is applicable: (1) in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; (2) executed copies of IRS Form W-8ECI; (3) in the case of a Non-U.S. ~~Participant pursuant~~ Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit L-1 to ~~paragraph (b) above are incorrect at~~ the ~~time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having~~ effect ~~after the date~~ that such ~~representations or certifications were made. (d) Where a~~ Non-U.S. Lender is ~~not~~not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or ~~has ceased to be, an Eligible Lender on~~ a “controlled foreign corporation” within the ~~due date for payment~~ meaning of ~~any sum under this Agreement,~~ Section 957 of the ~~increased amount due under Section 5.4(a) hereof shall be limited~~ Code related to the ~~amount the UK~~ Borrower ~~would have had to pay if: (i~~as described in Section 881(c)(3)(C) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the ~~relevant double taxation agreement~~Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or (~~iii~~4) ~~where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply~~ to the extent ~~that the UK Borrower would have been required to make~~ a ~~deduction or withholding on account of tax regardless of whether such~~ Non-U.S. Lender is ~~an Eligible Lender. This Section 5.4(d~~not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W- 8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-2 or Exhibit L-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Non-U.S. Lender is a partnership and one or more direct or indirect partners of such Non-U.S. Lender are claiming the portfolio interest exemption, such Non-U.S. Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such direct and indirect partner; (C) Any Non-U.S. Lender shall ~~not apply~~ deliver to the Borrower and the Administrative Agent (in ~~circumstances where~~ such number of copies as shall be requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender ~~ceases~~ under this Agreement (and from time to ~~be an Eligible Lender due to a change in~~ time thereafter upon the ~~Requirement~~ reasonable request of ~~Law or double taxation treaty or in its application or interpretation, in each case taking effect after~~ the ~~Funding Date. (e) If the US~~ Borrower ~~or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender~~ or the Administrative Agent), executed originals of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; (iii) Without limiting the generality of the foregoing, if a payment made to a Recipient under any Credit Document would be subject to United States federal withholding tax imposed by FATCA if such Recipient 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 Recipient shall ~~cooperate~~ deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower 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 the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Recipient has complied with such US Recipient’s obligations under FATCA or to determine the amount to deduct and withhold from such payment under FATCA, if any. Solely for the purposes of this clause (iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. (iv) Each Recipient agrees that if any form or certification it previously delivered pursuant to this Section 5.04(b) expires or becomes obsolete or inaccurate in any material respect, it shall update such form or certification or promptly notify the Borrower ~~or UK Borrower~~ and the Administrative Agent in ~~challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower.~~ writing of its legal inability to do so. (c) If any Lender or ~~the Administrative Agent~~any Agent determines, ~~as applicable~~in its sole discretion exercised in good faith, ~~receives~~ that it has received a refund of a ~~tax~~ Tax for which ~~a payment~~ it has been ~~made~~ indemnified by the ~~US Borrower or the UK~~ Borrower pursuant to this ~~Agreement~~Section 5.04 (including by the payment of additional amounts by the Borrower pursuant to this Section 5.04), ~~which refund in the good faith judgment of~~ then such Lender or ~~Administrative Agent, as the case may be, is attributable to~~ such ~~payment made by such US Borrower or UK Borrower, then the Lender or the Administrative~~ Agent, as the case may be, shall reimburse ~~such US Borrower or UK~~ the Borrower for such amount (~~together~~ but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 5.04 with respect to the Tax giving rise to such refund), net of all out-of-pocket expenses of such Agent or such Lender (including any Taxes imposed on the receipt of such refund) and without interest (other than any interest ~~received thereon~~paid by the relevant Governmental Authority with respect to such refund); provided, that the Borrower, upon the request of such 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 Governmental Authority) as to such Agent or such Lender in the event such Agent or such Lender ~~or Administrative Agent, as~~ is required to repay such refund to such Governmental Authority. Notwithstanding anything to the ~~case may be, determines to be the proportion of the refund as will leave it, after such reimbursement~~contrary in this paragraph (c), in no ~~better or worse~~ event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (c) the payment of which would place the indemnified party in a less favorable net after-Tax position than it the indemnified party would have been in if the ~~payment~~ Tax subject to indemnification and giving rise to such refund had not been ~~required~~deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any Agent or any Lender to make available its tax returns (or any other information relating to its Taxes which it deems confidential) to the Borrower or any other Person. (d) Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Non-Excluded Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Non- Excluded Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 13.06 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A ~~Lender~~ certificate as to the amount of such payment or ~~Administrative Agent shall claim any refund that it determines is available~~ liability delivered to ~~it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither~~ any Lender ~~nor~~ by the Administrative Agent shall be ~~obliged~~ conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to ~~disclose~~ set off and apply any ~~information regarding its tax affairs~~ and all amounts at any time owing to such Lender under any Credit Document or ~~computations~~ otherwise payable by the Administrative Agent to the ~~US Borrower or~~ Lender from any other source against any amount due to the ~~UK Borrower in connection with~~ Administrative Agent under this paragraph (~~e) or any other provision of this Section 5.4~~d). (fe) Each ~~Lender represents and agrees that, on~~ party’s obligations under this Section 5.04 shall survive the ~~Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1)~~ resignation or replacement of the ~~Code~~ Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the ~~regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto~~repayment, satisfaction or discharge of all obligations under any Credit Document.

Appears in 2 contracts

Sources: Credit Agreement (Tiga Acquisition Corp.), Credit Agreement (Tiga Acquisition Corp.)

Net Payments. (a) All payments made by ~~the US Borrower and the UK Borrower~~ Borrowers hereunder or under ~~this Agreement~~ any Loan Document shall be made without setoff, counterclaim, or other defense. To the extent permitted by applicable law, all payments hereunder and under any Loan Document (including, without limitation, any payment of principal, interest, or fees) to, or for the benefit, of any Person shall be made by Borrowers free and clear ~~of,~~ of and without deduction or withholding ~~for~~ for, or on account of, any ~~current~~ tax, duty, levy, impost, deduction, charge, withholding, or ~~future income~~assessment now or hereinafter imposed by any Governmental Authority. (b) If any Borrower makes any payment hereunder or under any Loan Document in respect of which it is required by law to deduct or withhold any Taxes, ~~stamp~~ such Borrower shall increase the payment hereunder or ~~other~~ under any such Loan Document such that after the reduction for the amount of Taxes withheld (and any taxes withheld or imposed with respect to the additional payments required under this Section 2.8(b)) the amount paid to the Lender or Administrative Agent equals the amount that was payable hereunder or under any such Loan Document without regard to this Section 2.8(b). To the extent any Borrower withholds any taxes, duties, levies, imposts, ~~duties~~deductions, charges, ~~fees, deductions or~~ withholdings, ~~now~~ or ~~hereafter imposed~~assessments on payments hereunder or under any Loan Document, ~~levied~~such Borrower shall pay the full amount deducted to the relevant Governmental Authority within the time allowed for payment under applicable law and shall deliver to the Administrative Agent within 30 days after it has made payment to such authority a receipt issued by such authority (or other evidence satisfactory to the Administrative Agent) evidencing the payment of all amounts so required to be deducted or withheld from such payment. (c) If any Lender or Administrative Agent is required by law to make any payments of any Taxes on or in relation to any amounts received or receivable hereunder or under any other Loan Document, ~~collected~~or any Tax is assessed against a Lender or Administrative Agent with respect to amounts received or receivable hereunder or under any other Loan Document, ~~withheld or assessed by any Governmental Authority, excluding~~ each Borrower will indemnify such person against (i) ~~net income taxes~~ such Tax (and ~~franchise taxes (imposed in lieu of net income taxes~~any reasonable counsel fees and expenses associated with such Tax) ~~imposed on the Administrative Agent or any Lender~~ and (ii) any ~~taxes~~ Taxes imposed ~~on the Administrative Agent or any Lender~~ as a result of ~~a current~~ the receipt of the payment under this Section 2.8(c). A certificate prepared in good faith as to the amount of such payment by Lender or ~~former connection between the~~ Administrative Agent ~~or such Lender~~ shall, absent manifest error, be final, conclusive, and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of binding on all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunderparties. ~~(b) Each Non-U.S. Lender shall:~~ (i) To the extent permitted by applicable law, each Lender that is a Non-U.S. Participant shall deliver to the ~~US Borrower~~ Funds Administrator and ~~the~~ Administrative Agent ~~two copies of either~~ on or prior to the Initial Borrowing Date (x) or in the case of a Lender that is an Assignee, on the date of such assignment to such Lender) two accurate and complete original signed copies of IRS Form W-8BEN, W-8ECI, or W-8IMY (or any successor or other applicable form prescribed by the IRS) certifying to such Lender’s entitlement to a complete exemption from, or a reduced rate in, United States withholding tax on interest payments to be made under this Agreement or any Note. If a Lender that is a Non-U.S. ~~Lender~~ Participant is claiming a complete exemption from ~~U.S. Federal~~ withholding ~~tax under Section 871(h) or 881(c) of the Code with respect~~ on interest pursuant to ~~payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of~~ Section 881(c) of the Code, the Lender shall deliver (along with two accurate and complete original signed copies of IRS Form W-8BEN) a certificate substantially in the form of Exhibit 2.8(d)(i) (any such certificate, a “Section 2.8(d)(i) Certificate”). In addition, each Lender that is a Non-U.S. Participant agrees that from time to time after the Initial Borrowing Date, (or in the case of a Lender that is an Assignee, after the date of the assignment to such Lender), when a lapse in time (or change in circumstances occurs) renders the prior certificates hereunder obsolete or inaccurate in any material respect, such Lender shall, to the extent permitted under applicable law, deliver to the Funds Administrator and Administrative Agent two new and accurate and complete original signed copies of an IRS Form W-8BEN, W-8ECI, or W-8IMY (or any successor or other applicable forms prescribed by the IRS), and if applicable, a new Section 2.8(d)(i) Certificate, to confirm or establish the entitlement to such Lender or Administrative Agent to an exemption from, or reduction in, United States withholding tax on interest payments to be made under this Agreement or any Note. (e) Each Lender that is not a 10Non-~~percent shareholder~~ U.S. Participant (~~within the meaning of Section 871(h)(3)(B~~other than any such Lender which is taxed as a corporation for U.S. federal income tax purposes) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case shall provide two properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of ~~any such form or certification~~ IRS Form W-9 (or any successor or other applicable ~~successor~~ form) ~~on or before the date that any such form or certification expires or becomes obsolete~~ to Funds Administrator and ~~after the occurrence of any event requiring a change in the most recent form previously delivered by it~~ Administrative Agent certifying to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender or Administrative Agent is exempt from ~~duly completing and delivering any such~~ United States backup withholding tax. To the extent that a form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required provided pursuant to this Section ~~5.4(b); provided, that~~ 2.8(e) is rendered obsolete or inaccurate in ~~the case~~ any material respects as result of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, change in ~~respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts~~ circumstances with respect to ~~U.S. Federal withholding tax existed on~~ the ~~date such Non-U.S. Lender became a party to this Agreement (or, in the case~~ status of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, ~~as the case may be, is attributable to~~ such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent ~~shall claim any refund that it determines is available~~ shall, to itthe extent permitted by applicable law, ~~unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the~~ deliver to Funds Administrator and Administrative Agent ~~shall be obliged~~ revised forms necessary to ~~disclose any information regarding its tax affairs~~ confirm or ~~computations to~~ establish the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented entitlement to such ~~arrangement prior thereto~~Lender’s or Administrative Agent’s exemption from United States backup withholding tax.

Appears in 2 contracts

Sources: Revolving Credit Agreement (Texas Petrochemicals Inc.), Revolving Credit Agreement (Texas Petrochemicals Inc.)

Net Payments. (a) All payments made by or on behalf of any Borrower to or on behalf of any Lender or Agent hereunder or under any Loan Document will be made without recoupment, setoff, counterclaim, or other defense. To the ~~US Borrower~~ extent permitted by applicable law, all payments hereunder and under any of the ~~UK Borrower under this Agreement~~ Loan Documents (including, without limitation, payments on account of principal and interest, and fees) to, or on behalf, of any Person shall be made by or on behalf of Borrowers free and clear ~~of,~~ of and without deduction or withholding ~~for~~ for, or on account of, any ~~current or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,~~ Taxes whatever nature now or hereafter ~~imposed, levied, collected, withheld or assessed~~ imposed by any Governmental Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) ~~Each Non-U.S. Lender shall: (i) deliver to the US~~ If any Borrower ~~and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax~~ makes any payment hereunder or under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, Loan Document in respect of ~~U.S. Federal withholding tax pursuant~~ which it is required by law to ~~paragraph (a~~deduct or withhold any Taxes subject to Section 4.7(d) ~~above to~~ below, such Borrower shall increase the ~~extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date~~ payment hereunder or under any such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date Loan Document such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested net amount received by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative ~~Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it~~ Agent equals net amount that would have been ~~in if~~ received had no such deduction or withholding occurred. To the extent any Borrower withholds any Taxes on payments hereunder or under any Loan Document, such Borrower shall pay the full amount to be deducted or withheld to the relevant taxation or other Governmental Authority within the time allowed for such payment under applicable law and shall deliver to Administrative Agent within 30 days after it has made such payment to the applicable authority a receipt issued by such authority (or other evidence satisfactory to Administrative Agent) evidencing the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such ~~arrangement prior thereto~~authority of all amounts so required to be deducted or withheld from such payment or such other evidence of payment that is reasonably satisfactory to Administrative Agent.

Appears in 2 contracts

Sources: Credit Agreement (Crown Holdings Inc), Credit Agreement (Crown Holdings Inc)

Net Payments. (a) All payments made by the ~~US Borrower and the UK~~ Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future ~~income, stamp~~ income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (i) any net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any ~~Lender and~~ Lender, (ii) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c) and (iii) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement)) (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect. If any such ~~non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”)~~ Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the ~~amounts so payable~~ Borrower shall: (A) promptly notify the Administrative Agent of such requirement; (B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender ~~shall be increased~~ under this Section 5.3(a); (C) as promptly as possible thereafter, forward to the ~~extent necessary~~ Administrative Agent and such Lender an official receipt (or a certified copy), or other documentation reasonably acceptable to ~~yield~~ the Administrative Agent and such Lender, evidencing such payment to such Governmental Authority; and (D) pay to the Administrative Agent or such ~~Lender (after~~ Lender, in addition to the payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for ~~its own account~~ any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required. If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the ~~account~~ benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent or such Lender, as applicable, with the ~~case may be, a certified copy of an original official receipt (or other evidence acceptable~~ documentation referred to ~~such Lender, acting reasonably~~in this Section 5.3(a) ~~received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails~~ when required to ~~pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence~~do so, the US Borrower ~~or the UK Borrower, as the case may be,~~ shall forthwith on demand fully indemnify the Administrative Agent ~~and the Lenders~~ or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or ~~any~~ such Lender as a result of ~~any~~ such failure. The ~~agreements in~~ Borrower’s obligations under this Section ~~5.4(a~~5.3(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) Each Non-U.S. Lender shall: (i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Notwithstanding Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)5.3(a), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify ~~any Non-U.S. Lender,~~ or to pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, ~~in respect of U.S. Federal withholding tax pursuant~~ except if any such Loans were assigned, participated or transferred to ~~paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date~~ such Non-U.S. Lender ~~became a party to this Agreement (or, in~~ at the ~~case of a Participant that is not organized under the laws~~ request of the ~~United States of America~~ Borrower or ~~a state thereof (a “Non-U.S. Participant”)~~were assigned, ~~on the date~~ participated or transferred to such Non-U.S. ~~Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to~~ Lender following the ~~extent that (x)~~ occurrence of and during the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence continuance of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions an Event of ~~paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant~~ Default pursuant to ~~paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law~~ Section 10.1 or ~~regulation having effect after the date such representations or certifications were made~~10. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 2 contracts

Sources: Term Loan Credit Agreement (ITC Holdings Corp.), Term Loan Credit Agreement (ITC Holdings Corp.)

Net Payments. ~~(a)~~ All payments made by the US Borrower ~~and the UK Borrower under this Agreement~~ hereunder shall be made without setoff or counterclaim. All such payments shall be made free and clear ~~of,~~ of and without deduction or withholding ~~for or on account of~~for, any ~~current~~ present or future ~~income, stamp or other~~ taxes, levies, imposts, duties, ~~charges,~~ fees, ~~deductions~~ assessments or ~~withholdings~~other charges of whatever nature, now or hereafter ~~imposed, levied, collected, withheld or assessed~~ imposed by any ~~Governmental Authority~~jurisdiction or by any department, ~~excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent~~ agency, state or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any other political subdivision or taxing authority thereof or therein (~~other than~~ but excluding any tax imposed on or measured by the net income of a Lender pursuant to the laws of the jurisdiction in which the principal office or Payment Office of such Lender is located or under the laws of any political subdivision or taxing authority of any such ~~connection arising solely from~~ jurisdiction in which the ~~Administrative Agent~~ principal office or Payment Office of such Lender ~~having executed~~is located) and all interest, ~~delivered or performed its obligations or received a payment under~~penalties, or ~~enforced~~similar liabilities with respect thereto (collectively, ~~this Agreement~~Taxes). If any Taxes are so levied or imposed, the Borrower agrees to pay the full amount of such ~~non-excluded taxes~~Taxes, ~~levies~~and such additional amounts as may be necessary so that every net payment of amounts due hereunder, ~~imposts~~after withholding or deduction for or on account of any Taxes, ~~duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are required to~~ will not be ~~withheld from any~~ less than the amounts ~~payable~~ provided for herein. The Borrower shall furnish to the ~~Administrative Agent or~~ Agent, within thirty (30) days after the date the payment of any Taxes is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Borrower. The Borrower shall indemnify and hold harmless each Lender ~~hereunder,~~ and reimburse each Lender upon the ~~amounts so payable to the Administrative Agent or~~ written request of such Lender ~~shall be increased to~~ setting forth the ~~extent necessary to yield to the Administrative Agent or~~ basis for requesting such ~~Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided~~amount, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the Administrative Agent for its own account or for the ~~account~~ amount of any Taxes so levied or imposed and paid by such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies which arise from any payment made by the Borrower or the ~~UK Borrower~~Agent hereunder or from the execution, ~~as the case may be~~delivery or registration of, ~~fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority~~ or ~~fails to remit to the Administrative Agent the required receipts or other required documentary evidence~~otherwise with respect to, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) Each Non-U.S. Lender shall: (i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other ~~provision of this Section 5.4~~Credit Document. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Revolving Credit and Term Loan Agreement (Hooper Holmes Inc)

Net Payments. (a) All payments made by the ~~US Borrower and the UK~~ Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future ~~income, stamp~~ income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (i) any net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any ~~Lender and~~ Lender, (ii) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c) and (iii) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement)) (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect. If any such ~~non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”)~~ Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the ~~amounts so payable~~ Borrower shall: (A) promptly notify the Administrative Agent of such requirement; (B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender ~~shall be increased~~ under this Section 5.3(a); (C) as promptly as possible thereafter, forward to the ~~extent necessary~~ Administrative Agent and such Lender an official receipt (or a certified copy), or other documentation reasonably acceptable to ~~yield~~ the Administrative Agent and such Lender, evidencing such payment to such Governmental Authority; and (D) pay to the Administrative Agent or such ~~Lender (after~~ Lender, in addition to the payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for ~~its own account~~ any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required. If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the ~~account~~ benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent or such Lender, as applicable, with the ~~case may be, a certified copy of an original official receipt (or other evidence acceptable~~ documentation referred to ~~such Lender, acting reasonably~~in this Section 5.3(a) ~~received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails~~ when required to ~~pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence~~do so, the US Borrower ~~or the UK Borrower, as the case may be,~~ shall forthwith on demand fully indemnify the Administrative Agent ~~and the Lenders~~ or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or ~~any~~ such Lender as a result of ~~any~~ such failure. The ~~agreements in~~ Borrower’s obligations under this Section ~~5.4(a~~5.3(a) shall survive the termination of this Agreement and the payment of the Revolving Credit Loans and all other amounts payable hereunder. (b) Each Non-U.S. Lender shall: (i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Revolving Credit Agreement (ITC Holdings Corp.)

Net Payments. (a) All payments made by the ~~US Borrower~~ Guarantors hereunder will be made without setoff, counterclaim or other defense. All payments hereunder (including, without limitation, payments on account of principal and ~~the UK Borrower under this Agreement~~ interest and fees) shall be made by the Guarantors free and clear ~~of,~~ of and without deduction or withholding for or on account ~~of,~~ of any ~~current~~ present or future ~~income~~tax, ~~stamp~~ duty, levy, impost, assessment or other ~~taxes, levies, imposts, duties, charges, fees, deductions or withholdings,~~ charge of whatever nature now or hereafter ~~imposed, levied, collected, withheld or assessed~~ imposed by any ~~Governmental Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent~~ jurisdiction or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or by any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement)therein. If the Guarantors are required by law to make any deduction or withholding of any taxes from any payment due hereunder, then the amount payable will be increased to such ~~non-excluded taxes~~amount which, ~~levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are~~ after deduction from such increased amount of all such taxes required to be withheld ~~from any amounts payable to~~ or deducted therefrom, will not be less than the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts amount due and payable hereunder ~~at the rates~~ had no such deduction or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunderwithholding been required. (b) ~~Each Non-U.S. Lender shall: (i)~~ If the Guarantors make any payment hereunder in respect of which they are required by law to make any deduction or withholding of any taxes, they shall pay the full amount to be deducted or withheld to the relevant taxation or other authority within the time allowed for such payment under applicable law and shall deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”Funds, ~~United States Internal Revenue Service Form W-8BEN (together with a certificate representing that~~ within 30 days after they have made such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related payment to the ~~US Borrower (within the meaning of Section 864(d)(4) of the Code))~~applicable authority, ~~or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed~~ a receipt issued by such ~~Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by~~ authority evidencing the ~~US Borrower under this Agreement; (ii) deliver~~ payment to ~~the US Borrower and the Administrative Agent two further copies~~ such authority of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender all amounts so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to ~~provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant~~ be deducted or withheld from such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliverpayment. (c) ~~The US Borrower shall not be~~ Without prejudice to the provisions of subsection (a) of this paragraph 11, if either Guaranteed Party is required by law to ~~indemnify~~ make any ~~Non-U.S. Lender~~payment on account of taxes on or in relation to any sum received or receivable hereunder by such Guaranteed Party, or ~~to pay~~ any ~~additional amounts to any Non-U.S. Lender,~~ liability for taxes in respect of ~~U.S. Federal withholding~~ any such payment is imposed, levied or assessed against the Funds, the Guarantors will promptly indemnify such person against such tax ~~pursuant to~~ payment or liability, together with any interest, penalties and expenses (including counsel fees and expenses) payable or incurred in connection therewith, including any tax on the Funds arising by virtue of payments under this subsection (c) of this paragraph 11, computed in a manner consistent with subsection (a) ~~above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to~~ of this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited 11. A certificate as to the amount ~~the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender~~of such payment by such Guaranteed Party, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicableabsent manifest error, shall ~~cooperate with such US Borrower or UK Borrower in challenging~~ be final, conclusive and binding upon all parties hereto for all purposes. Such Guaranteed Party agrees to use reasonable efforts to inform the Guarantors of any such taxes at affecting it that are imposed by any jurisdiction after it becomes aware of any such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4taxes being imposed. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Subsidiary Guarantee (Conversion Technologies International Inc)

Net Payments. (a) ~~All~~ Except as otherwise required by law, all payments made by the US Borrower ~~and~~ to any Lender or the ~~UK Borrower~~ Administrative Agent under this Agreement and/or any Loan Document shall be made free and clear of, and without ~~deduction or withholding~~ reduction for or on account of, any ~~current~~ present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding ~~(i) net income taxes~~ income, bank shares and franchise taxes (imposed by any jurisdiction in ~~lieu of net income taxes) imposed on the Administrative Agent~~ which such Lender's principal or ~~any Lender and (ii) any taxes imposed on the Administrative Agent~~ lending office is located or ~~any Lender as a result of a current or former connection between the Administrative Agent or~~ in which such Lender ~~and the jurisdiction of the Governmental Authority imposing such tax~~ is engaged in a trade or business or any political subdivision or taxing authority thereof or therein (~~other than any~~ such ~~connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement~~non-excluded taxes being called "Taxes"). If any ~~such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”)~~ Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender ~~hereunder~~under this Agreement and/or any Loan Document, the Borrower shall timely remit such Taxes to the Governmental Authority imposing the same and the amounts so payable to ~~the Administrative Agent or~~ such Lender shall be increased to the extent necessary to yield to ~~the Administrative Agent or~~ such Lender (after payment of all ~~Non-Excluded~~ Taxes) interest or any such other amounts payable ~~hereunder~~ at the rates or in the amounts specified in this ~~Agreement; provided, however, that the US Borrower shall not be required to increase~~ Agreement and/or any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4Loan Document. Whenever any ~~Non-Excluded Taxes are~~ Tax is payable by the ~~US Borrower or the UK~~ Borrower~~, as the case may be~~, as promptly as possible ~~thereafter such US Borrower or UK~~ thereafter, the Borrower shall send to the Administrative ~~Agent~~ Agent, for its own account or ~~for~~ the account of such Lender, as the case may be, a certified copy of an original official receipt ~~(or other evidence acceptable to such Lender, acting reasonably)~~ received by ~~such US Borrower or~~ the UK Borrower showing payment thereof. ~~In addition~~Without prejudice to the foregoing, if ~~the US Borrower~~ any Lender or ~~the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to~~ the Administrative Agent ~~the~~ is required ~~receipts or other required documentary evidence~~to make any payment on account of Taxes, the US Borrower will, upon notification by the Lender or the ~~UK Borrower~~Administrative Agent, as promptly indemnify such Person against such Taxes. Notwithstanding the ~~case may be~~foregoing provisions of this Section 2.12(a), ~~shall~~ the Borrower will have no obligation to indemnify any Lender or the Administrative ~~Agent~~ Agent, in respect of any Taxes that would not have been payable had (i) such Lender, assignee of such Lender or participant of a Lender (or each interestholder in such Lender, assignee or participant, where such Lender, assignee or participant is a pass-through entity for purposes of the U.S. withholding tax rules) provided to each of the Borrower and the ~~Lenders~~ Administrative Agent, the applicable Withholding Certificate. For purposes of this Section 2.12, the term "Taxes" includes interest, penalties and expenses payable or incurred in connection therewith. The Lender shall submit a certification or otherwise provide written notice to the Borrower within a reasonable period of time after becoming aware of any Taxes for which it is entitled to payments of additional amounts under this Section 2.12(a). All demands for payment hereunder shall be given no more than 90 days after the occurrence of the event giving rise to such demand; provided however, that failure to deliver notice on a timely basis shall not constitute a waiver of any Lender's right to receive payment for any ~~incremental taxes, interest,~~ costs ~~or penalties that may become payable by~~ relating to the ~~Administrative Agent or~~ 90-day period preceding the date of demand and any ~~Lender as a result~~ costs incurred after the giving of ~~any~~ such ~~failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder~~notice. (b) Each ~~Non-U.S.~~ Lender ~~shall: (i) deliver to the US Borrower and the Administrative Agent two copies~~ or assignee or participant of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not ~~organized~~ incorporated under the laws of the United States of America or a state thereof (~~a “Non-U.S. Participant”)~~and, on upon the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence written request of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any each other Lender or assignee or participant of a Lender) agrees that it will deliver to each of the Borrower and the Administrative Agent two (2) duly completed appropriate valid Withholding Certificates (as defined under Section 1.1441-1(c)(16) of the Income Tax Regulations (the "Regulations") certifying its status (i.e., U.S. or foreign person) and, if appropriate, making a claim of reduced, or exemption from, U.S. withholding tax on the basis of an income tax treaty or an exemption provided by the Internal Revenue Code of 1986 (as amended, the "Code"). The term "Withholding Certificate" means a Form W-9; a form W-8BEN; a form W-8ECI; a form W-8IMY and the related statements and certifications as required under Section 1.1441-1(e)(3) of the Regulations; a statement described in Section 1.871-14(c)(2) of the Regulations; or any other certificates under the Code or Regulations that certify or establish the status of a payee or beneficial owner as a U.S. or foreign person. Each Lender, assignee or participant required to deliver to the Borrower and the Administrative Agent a valid Withholding Certificate pursuant to the preceding sentence shall deliver such valid Withholding Certificate as follows: (A) each Lender which is a party hereto on the Closing Date shall deliver such valid Withholding Certificate at least five (5) Business Days prior to the first date on which any interest or fees are payable by the Borrower hereunder for the account of such Lender; (B) each assignee or participant shall deliver such valid Withholding Certificate at least five (5) Business Days before the effective date of such assignment or participation (unless the Administrative Agent in its sole discretion shall permit such assignee or participant to deliver such Withholding Certificate less than five (5) Business Days before such date in which case it shall be due on the date specified by the Administrative Agent). Each Lender, assignee or participant which so delivers a valid Withholding Certificate further undertakes to deliver to each of the Borrower and the Administrative Agent two (2) additional copies of such Withholding Certificate so delivered by it, and such amendments thereto or extensions or renewals thereof as ~~applicable, receives a refund of a tax for which a payment has been made~~ may reasonably requested by the US Borrower ~~or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender~~ or Administrative Agent. Notwithstanding the submission of a Withholding Certificate claiming a reduced rate of, ~~as the case may be~~or exemption from, ~~is attributable to such payment made by such US Borrower or UK Borrower~~U.S. withholding tax, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be ~~obliged~~ entitled to ~~disclose any information regarding~~ withhold United States federal income taxes at the full 30% withholding rate if in its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, reasonable judgment it is ~~not and will not be~~ required to do so under the due diligence imposed upon a ~~conduit entity participating in a conduit financing arrangement (as defined in~~ withholding agent under Section ~~7701(1~~1.1441-7(b) of the ~~Code~~ Regulations. Further, the Administrative Agent is indemnified under Section 1.1441-6(b) of the Regulations against any claims and demands of any Lender or assignee or participant of a Lender for the amount of any tax it deducts or withholds in accordance with regulations ~~thereunder) with respect to~~ under Section 1441 of the ~~Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto~~Code.

Appears in 1 contract

Sources: Loan Agreement (CSS Industries Inc)

Net Payments. (a) All payments ~~made~~ by the ~~US Borrower~~ Company hereunder or under any other Loan Document to or for the benefit of any Bank, any Issuing Bank, the Collateral Agent or the Administrative Agent shall be made without set-off, counterclaim or other defense and ~~the UK Borrower under this Agreement~~ shall be made free and clear of, and without deduction or withholding ~~for or on account of~~for, any ~~current~~ Taxes. In addition, the Company shall pay all Other Taxes. (b) The Company agrees to indemnify and hold harmless each Bank, the Issuing Bank, the Collateral Agent and the Administrative Agent for the full amount of Taxes or ~~future income, stamp~~ Other Taxes (including any additional Taxes or ~~other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed~~ Other Taxes imposed by any ~~Governmental Authority~~jurisdiction on amounts payable under this Section 4.09(b)) paid by any Bank, ~~excluding~~ any Issuing Bank, the Collateral Agent or the Administrative Agent in respect of any sum payable hereunder or under any other Loan Document (including penalties, interest, additions to tax and any reasonable expenses). Payment under this indemnification shall be made within 30 days after the date any Bank, any Issuing Bank, the Collateral Agent or the Administrative Agent makes written demand therefor. (c) If the Company shall be required by law to deduct or withhold any Taxes or Other Taxes from or in respect of any sum payable hereunder (or under any other Loan Document) to any Bank, any Issuing Bank, the Collateral Agent or the Administrative Agent, then: (i) ~~net income taxes~~ the sum payable shall be increased as necessary so that after making all such required deductions and ~~franchise taxes~~ withholdings of Taxes or Other Taxes (~~imposed in lieu of net income taxes) imposed on~~ including deductions and withholdings applicable to additional sums payable under this Section 4.09), such Bank, such Issuing Bank, the Collateral Agent or the Administrative Agent receives an amount equal to the sum it would have received had no such deductions or ~~any Lender and~~ withholdings been made; (ii) ~~any taxes imposed on~~ the ~~Administrative Agent~~ Company shall make such deductions and withholdings; and (iii) the Company shall pay the full amount deducted or ~~any Lender as a result of a current or former connection between~~ withheld to the ~~Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or~~ relevant taxing authority ~~thereof~~ or ~~therein~~ other authority in accordance with applicable law. (~~other than~~ d) Within 30 days after the date of any ~~such connection arising solely from~~ payment by the ~~Administrative Agent~~ Company of Taxes or ~~such Lender having executed~~Other Taxes, delivered or performed its obligations or received a payment under, or enforced, this Agreement). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are required to be withheld from any amounts payable the Company shall furnish to the Administrative Agent the original or ~~any Lender hereunder~~a certified copy of a receipt evidencing payment thereof, ~~the amounts so payable~~ or other evidence of payment satisfactory to the Administrative Agent if available from the appropriate taxing authority. (e) If the Company would be required to pay additional amounts to any Bank pursuant to paragraph (b) or (c) of this Section 4.09, then such ~~Lender~~ Bank shall use reasonable efforts (consistent with legal and regulatory restrictions) to change the jurisdiction of its lending office so as to eliminate the obligation of the Company to pay any such additional amounts which may thereafter accrue or to indemnify such Bank in the future, if such change in the reasonable judgment of such Bank is not otherwise materially disadvantageous to such Bank. (i) Any Bank not organized under the laws of the United States shall furnish to the Company or the Administrative Agent, two copies of IRS Form 1001, IRS Form 4224 or IRS Form W-8, or successor applicable form (which shall be ~~increased~~ accurate and complete) as may be required to establish, as of the date of this Agreement, an exemption from U.S. withholding taxes or backup withholding taxes in respect of payments made under any Loan Document. In the event that a Bank assigns all or a portion of its rights and obligations under this Agreement, pursuant to Section 11.07, each assignee shall furnish to the ~~extent necessary to yield to~~ Company or the Administrative Agent two copies of IRS Form 1001, IRS Form 4224 or ~~such Lender~~ IRS Form W-8, or successor applicable form (~~after payment of all Non-Excluded Taxes~~which shall be accurate and complete) ~~interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not~~ as may be required to ~~increase~~ establish, as of the date of the assignment, a full exemption from U.S. withholding taxes or back-up withholding taxes in respect of payments made under this Agreement. The Company and the Administrative Agent shall be entitled to rely upon the accuracy of any such ~~amounts~~ forms, documents or other information furnished to it by any Person and shall have no obligation to make any additional payment or indemnify any Person for any taxes, interest or penalties that would not have become payable ~~to any Lender~~ by such Person had such documentation been accurate. (ii) Each Bank that is not organized under the laws of the United States (including any assignee pursuant to Section 11.07 that is not organized under the laws of ~~America or a state thereof (a “Non-U.S. Lender”~~the United States) ~~if such Lender fails~~ shall also deliver to ~~comply with~~ the ~~requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower~~ Company or the ~~UK Borrower~~Administrative Agent two further copies of said Form 1001, Form 4224, or Form W-8, or successor applicable forms, as the case may be, ~~as promptly as possible thereafter such US Borrower~~ when requested to do so by the Company or ~~UK Borrower shall send to~~ the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) Each Non-U.S. Lender shall: (i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form ~~or certification~~ expires or becomes obsolete ~~and~~ or otherwise is required to be resubmitted as a condition to obtaining an exemption from a required withholding of U.S. federal income tax or after the occurrence of any event requiring a change in the most recent form previously delivered by it to the ~~US Borrower; and (iii) obtain~~ Administrative Agent or the Company, and such extensions ~~of time for filing and complete such forms~~ or ~~certifications~~ renewals thereof as may reasonably be requested by the ~~US Borrower~~ Company or the Administrative Agent; , certifying that such Bank is entitled to receive payments hereunder or under any other Loan Documents without deduction or withholding of any U.S. federal income taxes, unless in any such case an event outside the control of such Bank (including, without limitation, any change in treaty, law or ~~regulation~~ regulation) has occurred prior to the date on which any such delivery would otherwise be required ~~that~~ which renders ~~any~~ all such ~~form~~ forms inapplicable or which would prevent such ~~Lender~~ Bank from duly completing and delivering any such form with respect to it and such ~~Lender~~ Bank so advises the ~~US Borrower and~~ Company or the Administrative Agent. ~~Each Person that~~ No Bank shall ~~become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer,~~ be required to provide ~~all~~ a form described in the ~~forms~~ preceding sentence unless it is legally entitled to do so at the time such form is requested by the Company, and ~~statements required~~ the inability to provide any such form shall not be considered a failure to comply with the provisions of this Section 4.09(f) unless such inability results from any event that is not outside the control of such Bank. (iii) In the event that any Bank shall furnish a Form W-8 to the Company or the Administrative Agent pursuant to (i) or (ii) above, such Bank shall also certify that any payments pursuant to this ~~Section 5.4(b); provided, that~~ Agreement are not received by such Bank as an extension of credit entered into in the ~~case~~ ordinary course of ~~a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased.~~ its business. (g) Notwithstanding ~~anything~~ any other provision of this Section 4.09 to the contrary, ~~no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower~~ the Company shall not be required to ~~indemnify any Non-U.S. Lender, or to~~ pay any additional amounts ~~to any Non-U.S. Lender, in respect of U.S. Federal withholding tax~~ pursuant to ~~paragraph (a) above~~ this Section 4.09 to the extent that such additional amounts relate to Taxes or Other Taxes (~~i) the obligation~~ including obligations to deduct or withhold amounts with respect thereto) that result solely from a failure of any Bank, or assignee thereof, to ~~U.S. Federal withholding tax existed~~ comply with Section 4.09(f) on or before the ~~date such Non-U.S. Lender became a party to this Agreement (~~Effective Date or, in the case of ~~a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”)~~an assignee, on the date ~~such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to~~ the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were madeassignment becomes effective. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Credit Agreement (Clark Refining & Marketing Inc)

Net Payments. (a) All payments by Borrower hereunder to or for the benefit of any Lender or the Agent shall be made ~~by the US Borrower and the UK Borrower under this Agreement shall~~ without setoff, counterclaim or other defense. Except as provided in Subsection 3.9.2 (b) below, all such payments will be made free and clear of, and without deduction or withholding ~~for or on account of~~for, any ~~current~~ present or future ~~income, stamp or other~~ taxes, levies, imposts, duties, ~~charges,~~ fees, ~~deductions~~ assessments, or ~~withholdings,~~ other charges of whatever nature now or hereafter ~~imposed, levied, collected, withheld or assessed~~ imposed by any ~~Governmental Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent~~ jurisdiction or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or by any political subdivision or taxing authority thereof or therein with respect to such payments (~~other than~~ but excluding any ~~such connection arising solely from~~ tax imposed on or measured by the ~~Administrative Agent~~ net income or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws profits of the ~~United States of America or a state thereof (a “Non-U.S. Lender”) if such~~ Lender ~~fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower~~ or the ~~UK Borrower~~Agent, as the case may be, ~~as promptly as possible thereafter such US Borrower~~ pursuant to the laws of the jurisdiction in which it is organized) together with all interest, penalties or UK similar liabilities with respect thereto (collectively, "Covered Taxes"). If Borrower shall ~~send~~ be required by law to deduct any Covered Taxes from any sum payable hereunder to any Lender or the ~~Administrative Agent for its own account~~ Agent, (A) the sum payable shall be increased as may be necessary so that after making all required deductions of Covered Taxes (including deductions of Covered Taxes applicable to additional sums payable under this Section such Lender or ~~for~~ the ~~account of such Lender~~Agent, as the case may be, ~~a certified copy of~~ receives an ~~original official receipt~~ amount equal to the sum it would have received had no such deductions been made, (B) Borrower shall make such deductions and (C) Borrower shall pay the full amount so deducted to the relevant taxation authority or other ~~evidence acceptable~~ authority in accordance with applicable law. Borrower shall furnish to the Agent within 45 days after the date the payment of any Covered Taxes is due certified copies of tax receipts evidencing such ~~Lender, acting reasonably) received~~ payment by ~~such US~~ Borrower. Borrower or agrees to indemnify and hold harmless the ~~UK Borrower showing payment thereof. In addition, if~~ Lenders and the ~~US Borrower or the UK Borrower~~Agent and reimburse each of them, as the case may be, ~~fails~~ for the amount of any Covered Taxes so levied or imposed and paid by them. (b) Each Lender which is organized under the laws of a jurisdiction other than the United States or any State thereof (a "Foreign Lender") shall deliver to ~~pay any Non-Excluded Taxes when due to the appropriate taxing authority~~ Agent and Borrower (i) two valid, duly completed copies of IRS Form W-8ECI and W-8BEN or ~~fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower~~successor applicable form, as the case may be, ~~shall indemnify the Administrative Agent~~ and ~~the Lenders for~~ any ~~incremental taxes~~other required form, ~~interest, costs or penalties~~ certifying in each case that ~~may become payable by the Administrative Agent or any~~ such Foreign Lender ~~as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of~~ is entitled to receive payments under this Agreement and the ~~payment~~ Revolving Loan Notes payable to it without deduction or withholding of the Loans and all other amounts payable hereunder. (b) Each Non-U.S. Lender shall: (i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, any United States ~~Internal Revenue Service Form W-8BEN~~ federal income taxes or with such withholding imposed at a reduced rate (~~together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of~~ the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)"Reduced Rate"), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) a valid, duly completed IRS Form W-8 or W-9 or successor applicable form, as the case may be, to establish an exemption from United States backup withholding tax. Each such Lender shall also deliver to ~~the US~~ Agent and Borrower ~~and the Administrative Agent~~ two further copies of ~~any such form~~ said Form W-8ECI or ~~certification (~~W-8BEN and W-8 or ~~any~~ W-9, or successor applicable ~~successor form)~~ forms, or other manner of required certification, as the case may be, on or before the date that any such form ~~or certification~~ expires or becomes obsolete ~~and~~ or otherwise is required to be resubmitted as a condition to obtaining an exemption from a required withholding of United States federal income tax or entitlement to having such withholding imposed at the Reduced Rate or after the occurrence of any event requiring a change in the most recent form previously delivered by it to ~~the US Borrower; and (iii) obtain~~ Borrower and Agent, and such extensions ~~of time for filing and complete such forms~~ or ~~certifications~~ renewals thereof as may reasonably be requested by Borrower and Agent, certifying (i) in the ~~US Borrower~~ case of a Form W-8ECI or W-8BEN that such Lender is entitled to receive payments under this Agreement and the ~~Administrative Agent;~~ Revolving Loan Notes payable to it without deduction or withholding of any United States federal income taxes, unless in any such case any change in ~~treaty~~a tax treaty to which the United States is a party, or any change in law or regulation of the United States or official interpretation thereof has occurred after the Restatement Date and prior to the date on which any such delivery would otherwise be required that renders ~~any~~ all such ~~form~~ forms inapplicable or that would prevent such Foreign Lender from duly completing and delivering any such form with respect to it it, and such Foreign Lender so advises the US Borrower and the ~~Administrative Agent. Each Person~~ Agent that ~~shall become a Participant pursuant to Section 14.6~~ it is not capable of receiving payments without any deduction or ~~a Lender pursuant to Section 14.6 shall~~withholding at the Reduced Rate, ~~upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that~~ or (ii) in the case of a ~~Participant such Participant shall furnish all such required forms and statements to the Lender~~ Form W-8 or W-9, establishing an exemption from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were madebackup withholding tax. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Loan and Security Agreement (Mobile Mini Inc)

Net Payments. (ai) All payments made by the ~~US Borrower and the UK~~ Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the ~~Administrative Agent or any~~ Lender and (ii) any taxes imposed on the ~~Administrative Agent or any~~ Lender as a result of a current or former connection between the ~~Administrative Agent or such~~ Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the ~~Administrative Agent or such~~ Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement)) (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect. If any such ~~non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”)~~ Taxes are required to be withheld from any amounts payable to the ~~Administrative Agent or any~~ Lender hereunder, the ~~amounts so payable~~ Borrower shall: (A) promptly notify the Lender of such requirement; (B) promptly pay to the ~~Administrative Agent~~ relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by such ~~Lender shall be increased~~ Borrower to the ~~extent necessary to yield to the Administrative Agent or such~~ Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under ~~the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of~~ this Section ~~5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be,~~ 3.3(a); (C) as promptly as possible ~~thereafter such US Borrower or UK Borrower shall send~~ thereafter, forward to the ~~Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of~~ Lender an ~~original~~ official receipt (or a certified copy), or other ~~evidence~~ documentation reasonably acceptable to ~~such~~ the Lender, ~~acting reasonably~~evidencing such payment to such Governmental Authority; and (D) pay to the Lender, in addition to the payment to which the Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Lender (free and clear of any such ~~US Borrower or~~ Taxes, whether assessed against the ~~UK Borrower showing payment thereof. In addition, if the US Borrower or the UK~~ Borrower, as the ~~case may be,~~ Lender) will equal the full amount the Lender would have received had no such deduction or withholding been required. (ii) If the Borrower fails to pay ~~any Non-Excluded Taxes~~ to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 3.3(a) in respect of any payment to or for the ~~appropriate taxing authority~~ benefit of the Lender under this Agreement or fails to ~~remit~~ furnish the Lender with the documentation referred to ~~the Administrative Agent the~~ in this Section 3.3(a) when required ~~receipts or other required documentary evidence~~to do so, the US Borrower ~~or the UK Borrower, as the case may be,~~ shall forthwith on demand fully indemnify the ~~Administrative Agent and the Lenders~~ Lender for any incremental taxes, interest, costs or penalties that may become payable by the ~~Administrative Agent or any~~ Lender as a result of ~~any~~ such failure. . (iii) The ~~agreements in~~ Borrower’s obligations under this Section ~~5.4(a~~3.3(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) Each Non-U.S. Lender shall: (i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the ~~US Borrower or the UK~~ Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the ~~relevant~~ Lender ~~or the Administrative Agent, as applicable,~~ shall cooperate with ~~such US Borrower or UK~~ the Borrower in challenging such taxes at ~~such US Borrower’s or UK~~ the Borrower’s expense if so requested by ~~such US Borrower or UK~~ the Borrower. If ~~any~~ the Lender ~~or the Administrative Agent, as applicable,~~ receives a refund of of, or credit for, a ~~tax~~ Tax for which a payment has been made by the ~~US Borrower or the UK~~ Borrower pursuant to this Agreement, which refund or credit in the good faith judgment of ~~such~~ the Lender ~~or Administrative Agent, as the case may be,~~ is attributable to such payment made by ~~such US Borrower or UK~~ the Borrower, then the Lender ~~or the Administrative Agent, as the case may be,~~ shall reimburse ~~such US Borrower or UK~~ the Borrower for such amount ~~(together with any interest received thereon)~~ as the Lender ~~or Administrative Agent, as the case may be,~~ determines to be the proportion of the refund or credit as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A The Lender ~~or Administrative Agent~~ shall claim any refund or credit that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. ~~Neither any~~ The Lender ~~nor the Administrative Agent~~ shall not be obliged to disclose any information regarding its tax affairs or computations to the ~~US Borrower or the UK~~ Borrower in connection with this paragraph (eb) or any other provision of this Section ~~5.4~~3.3. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Term Loan Agreement (ITC Holdings Corp.)

Net Payments. ~~(a) All~~ Any and all payments made to the Bank by ~~the US Borrower and the UK Borrower under this Agreement~~ any Applicant hereunder shall be made free and clear ~~of,~~ of and without deduction or withholding for any Covered Taxes, unless an Applicant is required to deduct or ~~on account of~~withhold Covered Taxes. If an Applicant shall be required by law to deduct or withhold any Covered Taxes from or in respect of any sum payable hereunder to the Bank, any current or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (i) ~~net income taxes and franchise taxes~~ the sum payable shall be increased as may be necessary so that after making all required deductions or withholdings of Covered Taxes (~~imposed in lieu of net income taxes~~including deductions or withholdings applicable to additional sums payable under this Paragraph 6) ~~imposed on~~ the ~~Administrative Agent~~ Bank receives an amount equal to the sum it would have received had no such deductions or ~~any Lender~~ withholdings been required and (ii) ~~any taxes imposed on~~ such Applicant shall pay the ~~Administrative Agent~~ full amount deducted or ~~any Lender as a result of a current or former connection between~~ withheld to the ~~Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or~~ relevant taxing authority ~~thereof or therein (other than any such connection arising solely from~~ in accordance with applicable law and shall provide the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply Bank with the ~~requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower~~ original or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of ~~an original official~~ the receipt ~~(or other evidence acceptable to~~ evidencing such ~~Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof~~payment. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) Each Non-U.S. Lender shall: (i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the ~~US Borrower or the UK Borrower~~ Bank determines in good faith that ~~a reasonable basis exists for contesting any taxes for which indemnification~~ it has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives received a refund in respect of ~~a tax for~~ any Covered Taxes with respect to which ~~a payment~~ any Applicant has ~~been made by the US Borrower or the UK Borrower~~ paid additional amounts pursuant to this ~~Agreement~~Paragraph 6, ~~which refund in~~ the ~~good faith judgment~~ Bank shall promptly after the date of such ~~Lender or Administrative Agent, as~~ receipt pay over the ~~case may be, is attributable~~ amount of such refund to such ~~payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount~~ Applicant (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations but only to the ~~US Borrower or~~ extent of additional amounts paid by the ~~UK Borrower in connection with~~ Applicant under this paragraph (e) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) Paragraph 6 with respect to the ~~Borrowings hereunder unless the US Borrower has consented~~ Covered Taxes giving rise to such ~~arrangement prior thereto~~refund), net of all reasonable expenses of the Bank (including additional Taxes attributable to such refund, as determined in good faith by the Bank) and without interest (other than interest, if any, paid by the relevant taxing authority with respect to such refund). Any Applicant shall, upon demand, repay to the Bank any amount paid over to such Applicant by the Bank in the event the Bank is required to repay any portion of such refund to such taxing authority. Nothing in this Paragraph 6 shall entitle any Applicant to have access to the records of the Bank, including, without limitation, tax returns.

Appears in 1 contract

Sources: Standby Letter of Credit Agreement (Xl Capital LTD)

Net Payments. ~~(a)~~ All payments to be made by the ~~US Borrower and~~ Company under the ~~UK Borrower under this Agreement~~ Loan Documents shall be made free and clear of, and without deduction of, or withholding ~~for~~ for, or on account of, any ~~current~~ Tax of any nature whatsoever. If any Taxes are required to be withheld from any amounts payable to the Bank hereunder or under the Note, the amounts so payable to the Bank shall be increased to the extent necessary to yield to, or leave in the hands of, the Bank (after payment of all Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement or any other Loan Document. For the purposes of this clause 17.9, “Taxes” shall mean all present or future ~~income, stamp or~~ taxes (other ~~taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (i)~~ than net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the ~~Administrative Agent or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender~~ Bank as a result of a ~~current~~ present or former connection between the ~~Administrative Agent or such Lender~~ Bank and the jurisdiction of the Governmental ~~Authority~~ Body imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the ~~Administrative Agent or such Lender~~ Bank having executed, delivered or performed its obligations or received a payment under, or enforced, this ~~Agreement~~Agreement or any other Loan Document)~~. If any such non-excluded taxes~~) or capital duties, imposts, levies, ~~imposts, duties,~~ fees and charges~~, fees~~, deductions or withholdings ~~(“Non-Excluded Taxes”) are required to be~~ of any kind now or hereafter imposed, levied, collected, withheld ~~from~~ or assessed by any amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4Governmental Body. Whenever any ~~Non-Excluded~~ Taxes are payable by the ~~US Borrower or the UK Borrower, as the case may be~~Company, as promptly as possible thereafter ~~such US Borrower or UK Borrower~~ the Company shall send to the ~~Administrative Agent~~ Bank for its own ~~account or for the account of such Lender, as the case may be~~account, a certified copy of an original official receipt ~~(or other evidence acceptable to such Lender, acting reasonably)~~ received by ~~such US Borrower or~~ the ~~UK Borrower~~ Company showing payment thereof. ~~In addition, if~~ If the ~~US Borrower or the UK Borrower, as the case may be,~~ Company fails to pay any ~~Non-Excluded~~ Taxes when due to the appropriate taxing authority or fails to remit to the ~~Administrative Agent~~ Bank the required receipts or other required documentary evidence, the ~~US Borrower or the UK Borrower, as the case may be,~~ Company shall indemnify the ~~Administrative Agent~~ Bank for such Taxes and ~~the Lenders for~~ any incremental taxes, ~~interest, costs~~ interest or penalties that may become payable by the ~~Administrative Agent or any Lender~~ Bank as a result of any such failure. ~~The agreements~~ Notwithstanding the above or anything to the contrary in this ~~Section 5.4(a) shall survive~~ Agreement, if the ~~termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) Each~~ Bank assigns or participates any rights to a Non-U.S. ~~Lender shall: (i) deliver~~ Bank Transferee or a Special Participant and there is a requirement to ~~the US Borrower and the Administrative Agent two copies~~ withhold Taxes arising out of ~~either (x)~~ or in ~~the case of~~ connection with that Non-U.S. ~~Lender claiming exemption from U.S. Federal withholding tax under Section 871(h)~~ Bank’s or ~~881(c) of~~ Special Participant’s assignment or participation in the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of Credit or the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), making or ~~(y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed~~ maintaining by such Non-U.S. ~~Lender claiming complete exemption from,~~ Bank or ~~reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies~~ Special Participant of any ~~such form or certification (or any applicable successor form) on or before~~ Advance hereunder, the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that Company shall ~~become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer,~~ not be required to ~~provide all~~ increase the ~~forms and statements required pursuant~~ amount of interest or any other charge payable under this Agreement or any other Loan Document to ~~this Section 5.4(b); provided, that in~~ off-set the ~~case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased~~withheld Taxes. Notwithstanding anything to the ~~contrary~~contrary in this Agreement or any other Loan Document, ~~no Lender or Participant~~ and notwithstanding any changes in Applicable Law, from time to time, the Company and the Bank acknowledge and agree that the Bank shall ~~be required to deliver~~ satisfy, on behalf of the Company and the Bank, any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation requirement to withhold ~~amounts~~ federal Taxes under the Code (and duly record such withholding) with respect to ~~U.S. Federal withholding tax existed on~~ payments made by the ~~date~~ Company to the Bank arising out of, resulting from or otherwise in connection with any participation by BLL or any other member of the Bank Leumi Group (other than, for the avoidance of doubt, the Bank itself) in any Advance or any other portion of the Credit, and accordingly, the Company is not required to, and agrees not to, withhold any federal Taxes with respect to any such ~~Non~~payments, and the Bank agrees that the Company is not directly or indirectly responsible for any so-~~U.S. Lender became a party~~ called gross-up of interest pursuant to this ~~Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America~~ clause 17.9 or ~~a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder)~~otherwise; provided, however, ~~that this clause (i)~~ if, due to any change in Applicable Law the Bank is no longer able to perform such withholding function, then the Company shall be required to do so, but to avoid all doubt, such requirement shall not ~~apply~~ impose, and shall not be deemed or construed to impose, any obligation or liability on the part of the Company to directly or indirectly gross-up the interest payments or any other charge payable under this Agreement or any other Loan Document except and to the extent ~~that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to~~ specifically provided for in this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing 17.9. All payments to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the ~~US Borrower or~~ Company under the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent Loan Documents shall be ~~obliged to disclose~~ calculated and made free and clear of, and without any ~~information regarding its tax affairs~~ deduction for, or ~~computations to the US Borrower~~ on account of, any set-off or ~~the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4~~counterclaim. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Loan Agreement (Gazit-Globe LTD)

Net Payments. (a) All payments made by the US Borrower ~~and the UK Borrower~~ hereunder or under ~~this Agreement shall~~ any Note will be made without setoff, counterclaim or other defense. All such payments will be made free and clear of, and without deduction or withholding ~~for or on account of~~for, any ~~current~~ present or future ~~income, stamp or other~~ taxes, levies, imposts, duties, ~~charges,~~ fees, ~~deductions~~ assessments or ~~withholdings,~~ other charges of whatever nature now or hereafter ~~imposed, levied, collected, withheld or assessed~~ imposed by any ~~Governmental Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent~~ jurisdiction or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or by any political subdivision or taxing authority thereof or therein with respect to such payments (~~other than~~ but excluding any ~~such connection arising solely from~~ tax imposed on or measured by the ~~Administrative Agent~~ net income or ~~such~~ net profits of any Lender ~~having executed, delivered~~ or ~~performed~~ its ~~obligations or received a payment under~~applicable lending office, or ~~enforced~~any branch or affiliate thereof, ~~this Agreement). If~~ and all franchise taxes, branch taxes, taxes on doing business or taxes on the overall capital or net worth of any Lender or its applicable lending office, or any branch or affiliate thereof, or similar taxes, in each case imposed by the applicable taxing authority pursuant to the laws of the jurisdiction (or any political subdivision thereof or therein) in which such ~~non-excluded~~ Lender, applicable lending office, branch or affiliate is organized, located or carries on business, or in which its principal executive office is located) (all such taxes, levies, imposts, duties, ~~charges,~~ fees, ~~deductions~~ assessments or ~~withholdings (“Non-Excluded~~ other charges and related interest and penalties being referred to collectively as "Taxes”) "). If any Taxes are so levied or imposed, 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; provided that the Borrower will not be required to pay any additional amounts that are (i) attributable to a Lender's failure to comply with subsection (b) below, (ii) described in Section 3.5(d) or (iii) attributable to a Lender's failure to be ~~withheld from any amounts payable~~ a Basel Bank. The Borrower will furnish to the Administrative Agent 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 the Borrower. 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 for any period with respect to which such Lender has failed to provide the Borrower with the appropriate documentation described under Section 3.5(b), such Lender shall not be entitled to indemnification under Section 3.5(a). A certificate as to the amount of any such required indemnification payment prepared in good faith by such Lender or the Administrative Agent shall be final, conclusive and binding for all purposes absent demonstrable error. (b) Each Lender that is entitled to an exemption or reduction of any Taxes under the laws of the applicable taxing jurisdiction, or any ~~Lender hereunder~~treaty to which such jurisdiction is a party, with respect to payments under this Agreement or under the ~~amounts so payable~~ Notes shall deliver to the Borrower (with a copy to the Administrative ~~Agent~~ Agent) any documentation prescribed by applicable law that is necessary to permit such payments to be made without withholding or at a reduced rate. Any fees charged by the Chilean authorities to a Lender in obtaining or filing such ~~Lender~~ documentation shall be ~~increased~~ for the account of the Borrower. (c) If any Lender receives a refund in respect of any amounts paid by the Borrower pursuant to this Section 3.5, which refund is allocable to such payment, it shall promptly notify the Borrower of such refund and shall promptly repay such refund to the ~~extent necessary to yield to the Administrative Agent or such Lender (after payment~~ Borrower net of all ~~Non~~out-~~Excluded Taxes) interest or any~~ of-pocket expenses of such ~~other amounts payable hereunder at the rates or in the amounts specified in this Agreement~~Lender; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as upon the ~~case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the Administrative Agent for its own account or for the account~~ request of such Lender, as agrees to repay the ~~case may be, a certified copy of an original official receipt (or other evidence acceptable~~ amount paid over to ~~such Lender, acting reasonably) received~~ the Borrower by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) Each Non-U.S. Lender shall: (i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that event such ~~Non-U.S.~~ Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to ~~provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant~~ repay such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were maderefund. (d) ~~Where~~ If a Lender changes its residence, place of business or applicable lending office or takes any other similar action and the effect of such change or action, as of the date thereof, would be to increase the additional amounts that the Borrower is ~~not, or has ceased~~ obligated to ~~be, an Eligible Lender on the due date for payment of any sum~~ pay under ~~this Agreement~~Section 3.5(a), the ~~increased amount due under Section 5.4(a) hereof~~ Borrower shall not be ~~limited~~ obligated to pay the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4increase. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Senior Secured Bridge Credit Agreement (Aes Corporation)

Net Payments. (a) All payments by Borrower hereunder to or for the benefit of any Lender or the Agent shall be made ~~by the US Borrower and the UK Borrower under this Agreement shall~~ without setoff, counterclaim or other defense. Except as provided in Subsection 3.9.2 (b) below, all such payments will be made free and clear of, and without deduction or withholding ~~for or on account of~~for, any ~~current~~ present or future ~~income, stamp or other~~ taxes, levies, imposts, duties, ~~charges,~~ fees, ~~deductions~~ assessments, or ~~withholdings,~~ other charges of whatever nature now or hereafter ~~imposed, levied, collected, withheld or assessed~~ imposed by any ~~Governmental Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent~~ jurisdiction or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or by any political subdivision or taxing authority thereof or therein with respect to such payments (~~other than~~ but excluding any ~~such connection arising solely from~~ tax imposed on or measured by the ~~Administrative Agent~~ net income or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws profits of the ~~United States of America or a state thereof (a “Non-U.S. Lender”) if such~~ Lender ~~fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower~~ or the ~~UK Borrower~~Agent, as the case may be, ~~as promptly as possible thereafter such US Borrower~~ pursuant to the laws of the jurisdiction in which it is organized) together with all interest, penalties or UK similar liabilities with respect thereto (collectively, "Covered Taxes"). If Borrower shall ~~send~~ be required by law to deduct any Covered Taxes from any sum payable hereunder to any Lender or the ~~Administrative Agent for its own account~~ Agent, (A) the sum payable shall be increased as may be necessary so that after making all required deductions of Covered Taxes (including deductions of Covered Taxes applicable to additional sums payable under this Section such Lender or ~~for~~ the ~~account of such Lender~~Agent, as the case may be, ~~a certified copy of~~ receives an ~~original official receipt~~ amount equal to the sum it would have received had no such deductions been made, (B) Borrower shall make such deductions and (C) Borrower shall pay the full amount so deducted to the relevant taxation authority or other ~~evidence acceptable~~ authority in accordance with applicable law. Borrower shall furnish to the Agent within 45 days after the date the payment of any Covered Taxes is due certified copies of tax receipts evidencing such ~~Lender, acting reasonably) received~~ payment by ~~such US~~ Borrower. Borrower or agrees to indemnify and hold harmless the ~~UK Borrower showing payment thereof. In addition, if~~ Lenders and the ~~US Borrower or the UK Borrower~~Agent and reimburse each of them, as the case may be, ~~fails~~ for the amount of any Covered Taxes so levied or imposed and paid by them. (b) Each Lender which is organized under the laws of a jurisdiction other than the United States or any State thereof (a "Foreign Lender") shall deliver to ~~pay any Non-Excluded Taxes when due to the appropriate taxing authority~~ Agent and Borrower (i) two valid, duly completed copies of IRS Form W-8ECI and W-8BEN or ~~fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower~~successor applicable form, as the case may be, ~~shall indemnify the Administrative Agent~~ and ~~the Lenders for~~ any ~~incremental taxes~~other required form, ~~interest, costs or penalties~~ certifying in each case that ~~may become payable by the Administrative Agent or any~~ such Foreign Lender ~~as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of~~ is entitled to receive payments under this Agreement and the ~~payment~~ Revolving Loan Notes payable to it without deduction or withholding of the Loans and all other amounts payable hereunder. (b) Each Non-U.S. Lender shall: (i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, any United States ~~Internal Revenue Service Form W-8BEN~~ federal income taxes or with such withholding imposed at a reduced rate (~~together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of~~ the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)"Reduced Rate"), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) a valid, duly completed IRS Form W-8 or W-9 or successor applicable form, as the case may be, to establish an exemption from United States backup withholding tax. Each such Lender shall also deliver to ~~the US~~ Agent and Borrower ~~and the Administrative Agent~~ two further copies of ~~any such form~~ said Form W-8ECI or ~~certification (~~W-8BEN and W-8 or ~~any~~ W-9, or successor applicable ~~successor form)~~ forms, or other manner of required certification, as the case may be, on or before the date that any such form ~~or certification~~ expires or becomes obsolete ~~and~~ or otherwise is required to be resubmitted as a condition to obtaining an exemption from a required withholding of United States federal income tax or entitlement to having such withholding imposed at the Reduced Rate or after the occurrence of any event requiring a change in the most recent form previously delivered by it to ~~the US Borrower; and (iii) obtain~~ Borrower and Agent, and such extensions ~~of time for filing and complete such forms~~ or ~~certifications~~ renewals thereof as may reasonably be requested by Borrower and Agent, certifying (i) in the ~~US Borrower~~ case of a Form W-8ECI or W-8BEN that such Lender is entitled to receive payments under this Agreement and the ~~Administrative Agent;~~ Revolving Loan Notes payable to it without deduction or withholding of any United States federal income taxes, unless in any such case any change in ~~treaty~~a tax treaty to which the United States is a party, or any change in law or regulation of the United States or official interpretation thereof has occurred after the Closing Date and prior to the date on which any such delivery would otherwise be required that renders ~~any~~ all such ~~form~~ forms inapplicable or that would prevent such Foreign Lender from duly completing and delivering any such form with respect to it it, and such Foreign Lender so advises the US Borrower and the ~~Administrative Agent. Each Person~~ Agent that ~~shall become a Participant pursuant to Section 14.6~~ it is not capable of receiving payments without any deduction or ~~a Lender pursuant to Section 14.6 shall~~withholding at the Reduced Rate, ~~upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that~~ or (ii) in the case of a ~~Participant such Participant shall furnish all such required forms and statements to the Lender~~ Form W-8 or W-9, establishing an exemption from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were madebackup withholding tax. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Loan and Security Agreement (Mobile Mini Inc)

Net Payments. (a) All payments made by the US Borrower and the UK Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“"Non-Excluded Taxes”") are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “"Non-U.S. Lender”") if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or ~~the~~ UK Borrower showing payment thereof. ~~In addition, if~~ If the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, ~~the~~ such US Borrower or ~~the~~ UK ~~Borrower, as the case may be,~~ Borrower shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) Each Non-U.S. Lender shall: (i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “"portfolio interest”", United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b)~~; provided~~, provided that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased~~. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver~~. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “"Non-U.S. Participant”"), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such ~~Non~~ Non-U.S. Lender or ~~Non~~ Non-U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; ~~this Section 5.4(d) shall not apply~~ except to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the ~~Funding Date~~date of this Agreement. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s 's or UK Borrower’s 's expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither ~~any~~ the Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (ed) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the ~~Funding Date~~ date hereof and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Credit Agreement (Rockwood Specialties Group Inc)

Net Payments. (a) All payments ~~made~~ by the ~~US Borrower~~ Company hereunder or under any other Loan Document to or for the benefit of any Bank, any Issuing Bank, the Collateral Agent or the Administrative Agent shall be made without set-off, counterclaim or other defense and ~~the UK Borrower under this Agreement~~ shall be made free and clear of, and without deduction or withholding ~~for or on account of~~for, any ~~current~~ Taxes. In addition, the Company shall pay all Other Taxes. (b) The Company agrees to indemnify and hold harmless each Bank, the Issuing Bank, the Collateral Agent and the Administrative Agent for the full amount of Taxes or ~~future income, stamp~~ Other Taxes (including any additional Taxes or ~~other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed~~ Other Taxes imposed by any ~~Governmental Authority~~jurisdiction on amounts payable under this Section 4.09(b)) paid by any Bank, ~~excluding~~ any Issuing Bank, the Collateral Agent or the Administrative Agent in respect of any sum payable hereunder or under any other Loan Document (including penalties, interest, additions to tax and any reasonable expenses). (c) Payment under this indemnification shall be made within 30 days after the date any Bank, any Issuing Bank, the Collateral Agent or the Administrative Agent makes written demand therefor. (d) If the Company shall be required by law to deduct or withhold any Taxes or Other Taxes from or in respect of any sum payable hereunder (or under any other Loan Document) to any Bank, any Issuing Bank, the Collateral Agent or the Administrative Agent, then: (i) ~~net income taxes~~ the sum payable shall be increased as necessary so that after making all such required deductions and ~~franchise taxes~~ withholdings of Taxes or Other Taxes (~~imposed in lieu of net income taxes) imposed on~~ including deductions and withholdings applicable to additional sums payable under this Section 4.09), such Bank, such Issuing Bank, the Collateral Agent or the Administrative Agent receives an amount equal to the sum it would have received had no such deductions or ~~any Lender and~~ withholdings been made; (ii) ~~any taxes imposed on~~ the ~~Administrative Agent~~ Company shall make such deductions and withholdings; and (iii) the Company shall pay the full amount deducted or ~~any Lender as a result of a current or former connection between~~ withheld to the ~~Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or~~ relevant taxing authority ~~thereof~~ or ~~therein~~ other authority in accordance with applicable law. (~~other than~~ e) Within 30 days after the date of any ~~such connection arising solely from~~ payment by the ~~Administrative Agent~~ Company of Taxes or ~~such Lender having executed~~Other Taxes, delivered or performed its obligations or received a payment under, or enforced, this Agreement). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are required to be withheld from any amounts payable the Company shall furnish to the Administrative Agent the original or ~~any Lender hereunder~~a certified copy of a receipt evidencing payment thereof, ~~the amounts so payable~~ or other evidence of payment satisfactory to the Administrative Agent if available from the appropriate taxing authority. (f) If the Company would be required to pay additional amounts to any Bank pursuant to paragraph (b) or (c) of this Section 4.09, then such ~~Lender~~ Bank shall use reasonable efforts (consistent with legal and regulatory restrictions) to change the jurisdiction of its lending office so as to eliminate the obligation of the Company to pay any such additional amounts which may thereafter accrue or to indemnify such Bank in the future, if such change in the reasonable judgment of such Bank is not otherwise materially disadvantageous to such Bank. (i) Any Bank not organized under the laws of the United States shall furnish to the Company or the Administrative Agent, two copies of IRS Form W- 8BEN or W-8ECI, or successor applicable form (which shall be ~~increased~~ accurate and complete) as may be required to establish, as of the date of this Agreement, an exemption from U.S. withholding taxes or backup withholding taxes in respect of payments made under any Loan Document. In the event that a Bank assigns all or a portion of its rights and obligations under this Agreement, pursuant to Section 11.07, each assignee shall furnish to the ~~extent necessary to yield to~~ Company or the Administrative Agent two copies of IRS Form W-8BEN or ~~such Lender~~ W-8ECI, or successor applicable form (~~after payment of all Non-Excluded Taxes~~which shall be accurate and complete) ~~interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not~~ as may be required to ~~increase~~ establish, as of the date of the assignment, a full exemption from U.S. withholding taxes or back-up withholding taxes in respect of payments made under this Agreement. The Company and the Administrative Agent shall be entitled to rely upon the accuracy of any such ~~amounts~~ forms, documents or other information furnished to it by any Person and shall have no obligation to make any additional payment or indemnify any Person for any taxes, interest or penalties that would not have become payable ~~to any Lender~~ by such Person had such documentation been accurate. (ii) Each Bank that is not organized under the laws of the United States (including any assignee pursuant to Section 11.07 that is not organized under the laws of ~~America or a state thereof (a “Non-U.S. Lender”~~the United States) ~~if such Lender fails~~ shall also deliver to ~~comply with~~ the ~~requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower~~ Company or the ~~UK Borrower~~Administrative Agent two further copies of said Form W-8BEN or W-8ECI, or successor applicable forms, as the case may be, ~~as promptly as possible thereafter such US Borrower~~ when requested to do so by the Company or ~~UK Borrower shall send to~~ the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) Each Non-U.S. Lender shall: (i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form ~~or certification~~ expires or becomes obsolete ~~and~~ or otherwise is required to be resubmitted as a condition to obtaining an exemption from a required withholding of U.S. federal income tax or after the occurrence of any event requiring a change in the most recent form previously delivered by it to the ~~US Borrower; and (iii) obtain~~ Administrative Agent or the Company, and such extensions ~~of time for filing and complete such forms~~ or ~~certifications~~ renewals thereof as may reasonably be requested by the ~~US Borrower~~ Company or the Administrative Agent; , certifying that such Bank is entitled to receive payments hereunder or under any other Loan Documents without deduction or withholding of any U.S. federal income taxes or at a reduced rate, unless in any such case an event outside the control of such Bank (including, without limitation, any change in treaty, law or ~~regulation~~ regulation) has occurred prior to the date on which any such delivery would otherwise be required ~~that~~ which renders ~~any~~ all such ~~form~~ forms inapplicable or which would prevent such ~~Lender~~ Bank from duly completing and delivering any such form with respect to it and such ~~Lender~~ Bank so advises the ~~US Borrower and~~ Company or the Administrative Agent. ~~Each Person that~~ No Bank shall ~~become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer,~~ be required to provide ~~all the forms and statements required pursuant to this Section 5.4(b); provided, that~~ a form described in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that preceding sentence unless it is ~~not~~ legally ~~able~~ entitled to ~~deliver~~do so at the time such form is requested by the Company. (ch) The ~~US Borrower~~ Company shall not be required to ~~indemnify any Non-U.S. Lender, or to~~ pay any additional amounts ~~to any Non-U.S. Lender, in respect of U.S. Federal withholding tax~~ pursuant to ~~paragraph (a) above~~ this Section 4.09 to the extent that such additional amounts relate to Taxes or Other Taxes (~~i) the obligation~~ including obligations to deduct or withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause thereto) for any period (i) ~~shall not apply to the extent~~ that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have ~~arisen~~ been imposed but for the failure of a ~~failure by such Non U.S. Lender~~ Bank or ~~Non U.S. Participant~~ any assignee thereof, to comply with ~~the provisions of paragraph~~ Section 4.09(f) hereof (~~b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made,~~ other than ~~by reason of any change in treaty, law or regulation having effect after the date~~ if such ~~representations or certifications were made. (d) Where a Lender~~ failure is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in ~~the Requirement of Law~~ law, regulation or ~~double taxation~~ treaty ~~or in its application or interpretation, in each case taking effect~~ occurring after the ~~Funding Date.~~ date on which a form originally was required to be provided) or (eii) that are attributable to U.S. withholding taxes imposed (x) on the date the Bank becomes a Lender under this Agreement or (y) other than as a result of a change in law, regulation or treaty. If ~~the US Borrower or the UK Borrower determines in good faith that~~ a ~~reasonable basis exists for contesting any taxes for which indemnification has been demanded~~ Bank becomes subject to Taxes because of its failure to deliver a form required hereunder, the ~~relevant Lender or the Administrative Agent, as applicable,~~ Company shall ~~cooperate with~~ take such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, steps as the ~~case may be, is attributable~~ Bank shall reasonably request to assist such ~~payment made by~~ Bank to recover such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4Taxes. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Credit Agreement (Clark Refining & Marketing Inc)

Net Payments. (a) All payments made by the ~~US Borrower and the UK~~ Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or ~~withholdings~~withholdings (including mortgage recording taxes and similar fees), now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“"Non-Excluded Taxes”") are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (each such Lender, a “"Non-U.S. Lender”") if such Non-U.S. Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder5. (b) Each Non-U.S. Lender shall: (i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Revolving Credit Agreement (Kindercare Learning Centers Inc /De)

Net Payments. (a) All payments made by the ~~US Borrower and the UK~~ Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future ~~income, stamp~~ income or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (i) any net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any ~~Lender and~~ Lender, (ii) any such taxes attributable to the failure of the Administrative Agent or any Lender to comply with Section 5.3(c) and (iii) any such taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement)) (“Taxes”) except to the extent that such deduction or withholding is required by any applicable law, as modified by the administrative practice of any relevant Governmental Authority then in effect. If any such ~~non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”)~~ Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the ~~amounts so payable~~ Borrower shall: (A) promptly notify the Administrative Agent of such requirement; (B) promptly pay to the relevant Governmental Authority when due the full amount required to be deducted or withheld (including the full amount of Taxes required to be deducted or withheld from any additional amount paid by the Borrower to the Administrative Agent or such Lender ~~shall be increased~~ under this Section 5.3(a); (C) as promptly as possible thereafter, forward to the ~~extent necessary~~ Administrative Agent and such Lender an official receipt (or a certified copy), or other documentation reasonably acceptable to ~~yield~~ the Administrative Agent and such Lender, evidencing such payment to such Governmental Authority; and (D) pay to the Administrative Agent or such ~~Lender (after~~ Lender, in addition to the payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to which the Administrative Agent or such Lender is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by the Administrative Agent or such Lender, after deduction or withholding for ~~its own account~~ any such Taxes, will equal the full amount the Administrative Agent or such Lender would have received had no such deduction or withholding been required. If the Borrower fails to pay to the relevant Governmental Authority when due any Taxes that it was required to deduct or withhold under this Section 5.3(a) in respect of any payment to or for the ~~account~~ benefit of the Administrative Agent or any Lender under this Agreement or fails to furnish the Administrative Agent or such Lender, as applicable, with the ~~case may be, a certified copy of an original official receipt (or other evidence acceptable~~ documentation referred to ~~such Lender, acting reasonably~~in this Section 5.3(a) ~~received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails~~ when required to ~~pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence~~do so, the US Borrower ~~or the UK Borrower, as the case may be,~~ shall forthwith on demand fully indemnify the Administrative Agent ~~and the Lenders~~ or such Lender for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or ~~any~~ such Lender as a result of ~~any~~ such failure. The ~~agreements in~~ Borrower’s obligations under this Section ~~5.4(a~~5.3(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) Each Non-U.S. Lender shall: (i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Notwithstanding Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)5.3(a), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify ~~any Non-U.S. Lender,~~ or to pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, ~~in respect of U.S. Federal withholding tax pursuant~~ except if any such Loans were assigned, participated or transferred to ~~paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date~~ such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.request of

Appears in 1 contract

Sources: Term Loan Credit Agreement (ITC Holdings Corp.)

Net Payments. ~~(a) All payments made~~ If any Tax is required to be withheld or deducted from, or is otherwise payable by ~~the US~~ Borrower ~~and the UK Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of~~in connection with, any current or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative payment due to Agent or any Lender under the Loan Documents, Borrower (i) shall, if required, withhold or deduct the amount of such Tax from such payment and, in any case, pay such Tax to the appropriate taxing authority in accordance with applicable Law and (ii) ~~any taxes imposed on the Administrative~~ shall pay to Agent or ~~any~~ such Lender, as applicable, (a) such additional amounts as may be necessary so that the net amount received by Agent or such Lender with respect to such payment, after withholding or deducting all Taxes required to be withheld or deducted, is equal to the full amount payable under the Loan Documents and (b) an amount equal to all Taxes payable by Agent or such Lender as a result of payments made by Borrower (whether to a ~~current~~ taxing authority or ~~former~~ to Agent or such Lender) pursuant to this Section. If any Tax is withheld or deducted from, or is otherwise payable by Borrower in connection ~~between~~ with, any payment due to Agent or any Lender under the ~~Administrative~~ Loan Documents, Borrower shall, within 30 days after the date of such payment, furnish to Agent or such Lender, as applicable, the original or a certified copy of a receipt for such Tax from the applicable taxing authority. If any payment due to Agent or any Lender under the Loan Documents is or is expected to be made without withholding or deducting therefrom, or otherwise paying in connection therewith, any Tax payable to any taxing authority under circumstances that would lead Agent or such Lender ~~and the jurisdiction of the Governmental Authority imposing~~ to reasonably believe such ~~tax~~ withholding or deduction is required, Borrower shall, within 30 days after any ~~political subdivision~~ request from Agent or ~~taxing authority thereof or therein (other than any~~ such ~~connection arising solely from the Administrative~~ Lender, as applicable, furnish to Agent or such Lender ~~having executed, delivered or performed its obligations or received~~ a ~~payment under~~certificate from such taxing authority, or ~~enforced, this Agreement). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are required~~ an opinion of counsel acceptable to ~~be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative~~ Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or Lender, in ~~the amounts specified in this Agreement; provided, however,~~ either case stating that ~~the US Borrower shall not be required to increase any such amounts~~ no Tax payable to ~~any Lender that is not organized under the laws of the United States of America~~ such taxing authority was or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borroweris, as the case may be, ~~as promptly as possible thereafter such US Borrower~~ required to be withheld or UK Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) Each Non-U.S. Lender shall: (i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption deducted from, or ~~reduced rate of~~otherwise paid by Borrower in connection with, ~~U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies~~ such payment. For purposes of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section ~~5.4(b); provided~~only, ~~that in~~ the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower term "Tax" shall not be ~~required~~ deemed to ~~indemnify~~ include any ~~Non-U.S. Lender~~tax based upon net income, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such ~~Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is~~ as but not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the ~~amount~~ tax on net income imposed under the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Internal Revenue ~~authorizing the UK Borrower to make payment with deduction~~ Code of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent1986, as ~~applicable~~amended, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4and similar state income taxes. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Loan Agreement (Omniquip International Inc)

Net Payments. (a) All payments made by ~~the US Borrower and the UK Borrower~~ or on behalf of any Credit Party under this Agreement or any other Credit Document shall be made ~~free and clear of, and~~ without deduction or withholding for or on account ofof any Taxes, ~~any current or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed~~ except as required by any Governmental Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement)Applicable Law. If any ~~such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”)~~ Taxes are required to be withheld from any amounts payable by or on behalf of any Credit Party under this Agreement or any other Credit Document (as determined in the good faith discretion of the applicable withholding agent), then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the ~~Administrative Agent or any Lender hereunder~~relevant Governmental Authority in accordance with Applicable Law, and if such Tax is a Non-Excluded Tax, then the Borrower shall increase the amounts so payable to the ~~Administrative Agent or such Lender shall be increased~~ applicable Recipient to the extent necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to ~~yield~~ additional sums payable under this Section) the applicable Recipient receives an amount equal to the ~~Administrative Agent~~ sum it would have received had no such deduction or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4withholding been made. Whenever any ~~Non-Excluded~~ Taxes are ~~payable~~ paid by ~~the US Borrower or the UK Borrower~~a Credit Party pursuant to this Section 5.04(a), as soon as practicable thereafter, the ~~case may be, as promptly as possible thereafter such US Borrower or UK~~ Borrower shall send to the Administrative Agent ~~for its own account~~ the original or ~~for the account of such Lender, as the case may be,~~ a certified copy of ~~an original official~~ a receipt (issued by the relevant Governmental Authority, a copy of the return reporting such payment, or other evidence ~~acceptable~~ of such payment reasonably satisfactory to ~~such Lender, acting reasonably) received by such US~~ the Administrative Agent. The Borrower or shall indemnify the ~~UK Borrower showing payment thereof. In addition, if~~ Agents and the ~~US Borrower or the UK Borrower, as the case may be, fails to pay~~ Lenders for any Non-Excluded Taxes ~~when due~~ (including Non-Excluded Taxes imposed or asserted on or attributable to amounts payable under this Section 5.04(a)) that are paid by any Agent or Lender or that are required to be withheld or deducted from a payment to any Agent or Lender and any reasonable expenses arising therefrom or with respect thereto, whether or not such Non-Excluded Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority, within ten (10) days after demand therefor. A certificate as to the ~~appropriate taxing authority~~ amount of such payment or ~~fails~~ liability delivered to ~~remit~~ the Borrower by an Agent or Lender (with a copy to the Administrative ~~Agent the required receipts~~ Agent), or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. In addition, the Borrower shall pay any ~~Lender as a result~~ Other Taxes to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent, shall timely reimburse it for the payment of any ~~such failure~~Other Taxes. The agreements in this Section ~~5.4(a~~5.04(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (bi) Each ~~Non-U.S.~~ Lender ~~shall: (i) deliver~~ that is entitled to ~~the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming~~ an exemption from ~~U.S. Federal~~ or reduction of withholding ~~tax under Section 871(h) or 881(c) of the Code~~ Tax with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this ~~Agreement; (ii)~~ Agreement shall deliver to the US Borrower ~~and~~ (with a copy to the Administrative ~~Agent two further copies of any such form~~ Agent), at the time or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may times reasonably be requested by the US Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by Applicable Law or reasonably requested by the Borrower or Administrative Agent as will permit such payments to be made without withholding or at a reduced rate; ~~unless in any such case any change in treaty~~provided, ~~law or regulation has occurred prior to the date on which any such delivery would otherwise be required~~ that ~~renders any such form inapplicable or would prevent~~ such Lender ~~from duly completing~~ is legally entitled to complete, execute and ~~delivering~~ deliver such documentation. In addition, any ~~such form with respect to it and such Lender so advises~~ Lender, if reasonably requested by the US Borrower ~~and~~ or the Administrative Agent, shall deliver such other documentation 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. Each Person that shall become a Participant pursuant to Section ~~14.6~~ 13.06 or a Lender pursuant to Section ~~14.6~~ 13.06 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section ~~5.4(b~~5.04(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding ~~anything to the contrary~~any other provision of this paragraph, no Lender ~~or Participant~~ shall be required to deliver any form (other than such documentation required by Sections 5.04(b)(ii)(A)-(C) and (iii)) that in such Lender’s reasonable judgment would subject such Lender to any material unreimbursed cost or ~~certification that it is not legally able to deliver~~expense or would materially prejudice the legal or commercial position of such Lender. (cii) ~~The US Borrower~~ Without limiting the generality of the foregoing, (A) any Lender that is a “United States Person” as defined in Section 7701(a)(30) of the Code shall ~~not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above~~ deliver to the ~~extent that (i)~~ Borrower and the ~~obligation to withhold amounts with respect to U.S. Federal withholding tax existed~~ Administrative Agent on or about the date on which such ~~Non-U.S.~~ L▇▇▇▇▇ becomes a Lender ~~became a party to~~ under this Agreement (orand from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), ~~in the case~~ executed copies of ~~a Participant~~ IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax; (B) any Lender that is not ~~organized under the laws~~ a “United States Person” as defined in Section 7701(a)(30) of the ~~United States of America or a state thereof~~ Code (a “Non-U.S. ~~Participant~~Lender”)) shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall reasonably be requested) on or about the date on which such Non-U.S. ~~Participant became~~ Lender becomes a ~~Participant hereunder); provided, however, that~~ Lender under this ~~clause~~ Agreement (~~i) shall not apply~~ and from time to time thereafter upon the ~~extent that (x)~~ reasonable request of the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the ~~UK Borrower~~Administrative Agent), (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any whichever of the ~~representations or certifications made by~~ following is applicable: (1) in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; (2) executed copies of IRS Form W-8ECI; (3) in the case of a Non-U.S. ~~Participant pursuant~~ Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit L-1 to ~~paragraph (b) above are incorrect at~~ the ~~time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having~~ effect ~~after the date~~ that such ~~representations or certifications were made. (d) Where a~~ Non-U.S. Lender is ~~not~~not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or ~~has ceased to be, an Eligible Lender on~~ a “controlled foreign corporation” within the ~~due date for payment~~ meaning of ~~any sum under this Agreement,~~ Section 957 of the ~~increased amount due under Section 5.4(a) hereof shall be limited~~ Code related to the ~~amount the UK~~ Borrower ~~would have had to pay if: (i~~as described in Section 881(c)(3)(C) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the ~~relevant double taxation agreement~~Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or (~~iii~~1) ~~where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply~~ to the extent ~~that the UK Borrower would have been required to make~~ a ~~deduction or withholding on account of tax regardless of whether such~~ Non-U.S. Lender is ~~an Eligible Lender. This Section 5.4(d~~not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-2 or Exhibit L-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Non-U.S. Lender is a partnership and one or more direct or indirect partners of such Non-U.S. Lender are claiming the portfolio interest exemption, such Non-U.S. Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such direct and indirect partner; (C) Any Non-U.S. Lender shall ~~not apply~~ deliver to the Borrower and the Administrative Agent (in ~~circumstances where~~ such number of copies as shall be requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender ~~ceases~~ under this Agreement (and from time to ~~be an Eligible Lender due to a change in~~ time thereafter upon the ~~Requirement~~ reasonable request of ~~Law or double taxation treaty or in its application or interpretation, in each case taking effect after~~ the ~~Funding Date. (e) If the US~~ Borrower ~~or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender~~ or the Administrative Agent), executed originals of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; (iii) Without limiting the generality of the foregoing, if a payment made to a Recipient under any Credit Document would be subject to United States federal withholding tax imposed by FATCA if such Recipient 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 Recipient shall ~~cooperate~~ deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower 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 the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Recipient has complied with such US Recipient’s obligations under FATCA or to determine the amount to deduct and withhold from such payment under FATCA, if any). Solely for the purposes of this clause (iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. (iv) Each Recipient agrees that if any form or certification it previously delivered pursuant to this Section 5.04(b) expires or becomes obsolete or inaccurate in any material respect, it shall update such form or certification or promptly notify the Borrower ~~or UK Borrower~~ and the Administrative Agent in ~~challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower.~~ writing of its legal inability to do so. (c) If any Lender or ~~the Administrative Agent~~any Agent determines, ~~as applicable~~in its sole discretion exercised in good faith, ~~receives~~ that it has received a refund of a ~~tax~~ Tax for which ~~a payment~~ it has been ~~made~~ indemnified by the ~~US Borrower or the UK~~ Borrower pursuant to this ~~Agreement~~Section 5.04 (including by the payment of additional amounts by the Borrower pursuant to this Section 5.04), ~~which refund in the good faith judgment of~~ then such Lender or ~~Administrative Agent, as the case may be, is attributable to~~ such ~~payment made by such US Borrower or UK Borrower, then the Lender or the Administrative~~ Agent, as the case may be, shall reimburse ~~such US Borrower or UK~~ the Borrower for such amount (~~together~~ but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 5.04 with respect to the Tax giving rise to such refund), net of all out-of-pocket expenses of such Agent or such Lender (including any Taxes imposed on the receipt of such refund) and without interest (other than any interest ~~received thereon~~paid by the relevant Governmental Authority with respect to such refund); provided, that the Borrower, upon the request of such Agent or such L▇▇▇▇▇, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) as to such Agent or such Lender in the event such Agent or such Lender ~~or Administrative Agent, as~~ is required to repay such refund to such Governmental Authority. Notwithstanding anything to the ~~case may be, determines to be the proportion of the refund as will leave it, after such reimbursement~~contrary in this paragraph (c), in no ~~better or worse~~ event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (c) the payment of which would place the indemnified party in a less favorable net after-Tax position than it the indemnified party would have been in if the ~~payment~~ Tax subject to indemnification and giving rise to such refund had not been ~~required~~deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any Agent or any Lender to make available its tax returns (or any other information relating to its Taxes which it deems confidential) to the Borrower or any other Person. (d) Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Non-Excluded Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Non-Excluded Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 13.06 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A ~~Lender~~ certificate as to the amount of such payment or ~~Administrative Agent shall claim any refund that it determines is available~~ liability delivered to ~~it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither~~ any Lender ~~nor~~ by the Administrative Agent shall be ~~obliged~~ conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to ~~disclose~~ set off and apply any ~~information regarding its tax affairs~~ and all amounts at any time owing to such Lender under any Credit Document or ~~computations~~ otherwise payable by the Administrative Agent to the ~~US Borrower or~~ Lender from any other source against any amount due to the ~~UK Borrower in connection with~~ Administrative Agent under this paragraph (~~e) or any other provision of this Section 5.4~~d). (fe) Each ~~Lender represents and agrees that, on~~ party’s obligations under this Section 5.04 shall survive the ~~Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1)~~ resignation or replacement of the ~~Code~~ Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the ~~regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto~~repayment, satisfaction or discharge of all obligations under any Credit Document.

Appears in 1 contract

Sources: Credit Agreement (Grindr Inc.)

Net Payments. (a) All payments made by Borrower hereunder or under any Loan Document will be made without setoff, counterclaim or other defense. Except as provided in Section 4.7(d), all payments hereunder and under any of the ~~US Borrower~~ Loan Documents (including, without limitation, payments on account of principal and ~~the UK Borrower under this Agreement~~ interest and fees) shall be made by Borrower free and clear ~~of,~~ of and without ~~deduction or~~ withholding for or on account ~~of,~~ of any ~~current~~ present or future ~~income~~tax, ~~stamp~~ duty, levy, impost, assessment or other ~~taxes, levies, imposts, duties, charges, fees, deductions or withholdings,~~ charge of whatever nature now or hereafter ~~imposed, levied, collected, withheld or assessed~~ imposed by any Governmental Authority, but excluding therefrom (i) ~~net income taxes and franchise taxes (imposed in lieu of net income taxes)~~ a tax imposed on the ~~Administrative Agent~~ overall net income (including a franchise tax based on net income) of the lending office of the Lender in respect of which the payment is made by the jurisdiction in which the Lender is incorporated or ~~any Lender and~~ the jurisdiction (or political subdivision or taxing authority thereof) in which its lending office is located, (ii) in the case of any Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) and that does not comply with Section 4.7(d), any taxes imposed by the United States by means of withholding at the source unless such withholding results from a change in applicable law, treaty or regulations or the interpretation or administration thereof (including, without limitation, any guideline or policy not having the force of law) by any authority charged with the administration thereof subsequent to the date such Lender becomes a Lender with respect to the Loan or portion thereof affected by such change and (iii) any tax imposed on or measured by the ~~Administrative Agent or~~ overall net income (including a franchise tax based on net income, but excluding any ~~Lender as a result~~ taxes imposed by the United States by means of withholding at the source) of a ~~current~~ Lender or ~~former connection between~~ an office or branch thereof by the ~~Administrative Agent or such Lender and the jurisdiction~~ United States of ~~the Governmental Authority imposing such tax~~ America or any political subdivision or taxing authority thereof or therein (such tax or taxes, other than ~~any such connection arising solely from the Administrative Agent~~ excluded tax or ~~such Lender having executed~~taxes, ~~delivered~~ being herein referred to as "Tax" or ~~performed its obligations or received a payment under, or enforced, this Agreement~~"Taxes"). If Borrower is required by law to make any deduction or withholding of any Taxes from any payment due hereunder or under any of the Loan Documents, then the amount payable will be increased to such ~~non-excluded taxes~~amount which, ~~levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are~~ after deduction from such increased amount of all such Taxes required to be withheld ~~from~~ or deducted therefrom, will not be less than the amount due and payable hereunder had no such deduction or withholding been required. (b) If Borrower makes any ~~amounts payable~~ payment hereunder or under any of the Loan Documents in respect of which it is required by law to make any deduction or withholding of any Taxes, it shall pay the full amount to be deducted or withheld to the ~~Administrative~~ relevant taxation or other authority within the time allowed for such payment under applicable law and shall deliver to the Lenders within 30 days after it has made such payment to the applicable authority a receipt issued by such authority evidencing the payment to such authority of all amounts so required to be deducted or withheld from such payment. (c) Without prejudice to the provisions of Section 4.7(a), if any Lender, or Agent on its behalf, is required by law to make any payment on account of Taxes on or in relation to any such received or receivable tax hereunder or under any of the Loan Documents by such Lender, or Agent on its behalf, or any liability for Tax in respect to any such payment is imposed, levied or assessed against any Lender ~~hereunder~~or Agent on its behalf, ~~the amounts so~~ Borrower will promptly indemnify such person against such Tax payment or liability, together with any interest, penalties and expenses (including counsel fees and expenses) payable or incurred in connection therewith, including any tax of any Lender arising by virtue of payments under this Section 4.7(c), computed in a manner consistent with this Section 4.7(c). A certificate as to the ~~Administrative~~ amount of such payment by such Lender, or Agent ~~or such Lender~~ on its behalf, absent manifest error, shall be ~~increased to the extent necessary to yield to the Administrative Agent or such Lender~~ final, conclusive and binding upon all parties hereto for all purposes. (~~after payment of all Non-Excluded Taxes~~d) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Each Lender that is not ~~organized~~ a United States person (as such term is defined in Section 7701(a)(30) of the Code) agrees to deliver to Borrower and Agent on or prior to the Initial Borrowing Date, or in the case of a Lender that is an Assignee of an interest under this Agreement pursuant to Section 3.7 or 12.8 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment), on the date of such assignment to such Lender, together with any other certificate or statement of exemption required under the ~~laws~~ Code to establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to any payments to such Lender, (i) two accurate and complete original signed copies of IRS Form 4224 or 1001 (or successor forms) certifying to such Lender'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 Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code, (x) a certificate substantially in the form of Exhibit 4.7(d) (any such certificate, a "Section 4.7(d)(ii) Certificate") and (y) two accurate and complete original signed copies of IRS Form W-8 (or successor form) certifying to such Lender's entitlement to a complete exemption from United States withholding tax with respect to payments of ~~America~~ interest to be made under this Agreement and under any Note. In addition, each Lender agrees that from time to time after the Initial Borrowing 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 Borrower and Agent two new accurate and complete original signed copies of IRS Form 4224 or 1001, or Form W-8 and a ~~state thereof (a “Non-U.S. Lender”~~Section 4.7(d)(ii) ~~if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower~~Certificate, as the case may be, and such other forms as ~~promptly as possible thereafter~~ may be required in order to confirm or establish the entitlement of such US Lender 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 Borrower and Agent of its inability to deliver any such form or UK certificate. Notwithstanding anything to the contrary contained in Section 4.7(a), but subject to Section 12.8(c) and the immediately succeeding sentence, (x) Borrower shall ~~send~~ be entitled, to the ~~Administrative Agent for its own account~~ 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 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 ~~Lender~~term is defined in Section 7701(a)(30) of the Code) for United States Federal income tax purposes to the extent that such Lender has not provided to Borrower IRS Forms that establish a complete exemption from such deduction or withholding and (y) Borrower shall be obligated pursuant to Section 4.7(a) hereof to gross-up payments to be made to a Lender in respect of income or similar Taxes imposed by the United States unless (I) upon timely notice from the Borrower, as such Lender has not provided to Borrower the IRS Forms required to be provided to Borrower pursuant to this Section 4.7(d), or (II) in the case ~~may be~~of a payment, other than interest, to a ~~certified copy~~ Lender described in clause (ii) above, to the extent that such IRS Forms do not establish a complete exemption from withholding of ~~an original official receipt (~~such Taxes. Notwithstanding anything to the contrary contained in the preceding sentence or ~~other evidence acceptable to such Lender~~elsewhere in this Section 4.7 and except as set forth in Section 12.8(c), ~~acting reasonably) received by such US~~ Borrower ~~or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails~~ agrees to pay ~~any Non-Excluded Taxes when due~~ additional amounts and to indemnify each Lender in the manner set forth in Section 4.7(a) (without regard to the ~~appropriate taxing authority~~ identity of the jurisdiction requiring the deduction or ~~fails to remit to~~ withholding) in respect of any amounts deducted or withheld by it as described in the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender immediately preceding sentence as a result of any ~~such failure. The agreements~~ changes after the Initial Borrowing Date in ~~this Section 5.4(a) shall survive~~ any applicable law, treaty, governmental rule, regulation, guideline or order, or in the ~~termination~~ interpretation thereof, relating to the deducting or withholding of ~~this Agreement and the payment of the Loans and all other amounts payable hereunder~~income or similar Taxes. (be) Each ~~Non-U.S.~~ Lender ~~shall: (i) deliver to the US Borrower and the Administrative Agent two copies~~ agrees that, as promptly as practicable after it becomes aware of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the ~~Administrative Agent; unless~~ existence of any condition that would cause Borrower to make a payment in respect of any Taxes to such ~~case~~ Lender pursuant to Section 4.7(a) or a payment in indemnification for any ~~change in treaty~~Taxes pursuant to Section 4.7(c), ~~law~~ it will use reasonable efforts to make, fund or ~~regulation has occurred prior~~ maintain the Loan (or portion thereof) of such Lender with respect to which the ~~date on~~ aforementioned payment is or would be made through another lending office of such Lender if as a result thereof the additional amounts which ~~any such delivery~~ would otherwise be required ~~that renders any~~ to be paid by such ~~form inapplicable~~ Borrower in respect of such Loans (or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant portions thereof) or participation in Letters of Credit pursuant to Section ~~14.6~~ 4.7(a) or a Section 4.7(c) would be materially reduced, and if, as determined by such Lender, in its reasonable discretion, the making, funding or maintaining of such Loans or participation in Letters of Credit (or portions thereof) through such other lending office would not otherwise materially adversely affect such Loans or such Lender. Borrower agrees to pay all reasonable expenses incurred by any Lender ~~pursuant to Section 14.6 shall, upon the effectiveness~~ in utilizing another lending office of ~~the related transfer, be required to provide all the forms and statements required~~ such Lender pursuant to this Section ~~5.4(b~~4.7(e); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Credit Agreement (Gaylord Container Corp /De/)

Net Payments. (a) All payments made by or on behalf of any Credit Party to or on behalf of any Lender or Agent hereunder or under any Loan Document will be made without recoupment, setoff, counterclaim or other defense. Notwithstanding any other provision in any Loan Document, except as provided in this Section 4.7, all payments hereunder and under any of the ~~US Borrower~~ Loan Documents (including, without limitation, payments on account of principal and ~~the UK Borrower under this Agreement~~ interest and fees) to or on behalf of any Lender or Agent shall be made by or on behalf of the Credit Parties free and clear ~~of,~~ of and without ~~deduction or~~ withholding for or on account ~~of,~~ of any ~~current~~ present or future ~~income~~tax, ~~stamp~~ duty, levy, impost, assessment or other ~~taxes, levies, imposts, duties, charges, fees, deductions or withholdings,~~ charge of whatever nature now or hereafter ~~imposed, levied, collected, withheld or assessed~~ imposed by any Governmental Authority, but excluding therefrom: (i) ~~net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any Lender and~~ Excluded Taxes; (ii) in the case of any ~~taxes~~ Lender or Agent that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) (each being referred to as a “Non-U.S. Participant”) (other than a Participant, Assignee, successor to the Agent as of the date of this Agreement or Lender that designates a new lending office), any Taxes imposed by the United States by means of withholding at the source unless such withholding (a) results from a change in Applicable Law, treaty or regulations or the interpretation or administration thereof by any authority charged with the administration thereof subsequent to the date of this Agreement or (b) is imposed on payments with respect to a Lender’s interest in the ~~Administrative~~ Loan Documents acquired under Section 3.7, Section 12.6, or Article XIII; (iii) any Taxes to the extent such Taxes would be avoided if the Lender or Agent provided the forms required under Section 4.7(d), unless (A) the Lender or ~~any Lender~~ Agent is not legally entitled to provide the forms (1) as a result of a ~~current~~ change in Applicable Law, treaty, or ~~former connection between~~ regulations or interpretation or administration thereof by any authority charged with the ~~Administrative~~ administration thereof subsequent to the date such Lender or Agent becomes a Lender or Agent under a Loan Document or (2) after the Lender acquired an interest in the Loan Documents under Section 3.7, Section 12.6, or Article XIII or (B) the Lender or Agent is not providing the forms under Section 4.7(d)(iii) because the Lender or Agent determines (in its good faith judgment) that it is not legally entitled to provide the forms or that providing the forms would prejudice or disadvantage the Lender or Agent in any significant respect; (iv) in the case of any Participant, Assignee, successor to the Agent as of the date of this Agreement or Lender that designates a new lending office, in each case that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code), any Taxes imposed by the United States by means of withholding at the source that are in effect on the date such Participant, Assignee or successor Agent becomes a party to this Agreement or any Loan Document or such Lender ~~and~~ designates a new lending office, as applicable, except to the ~~jurisdiction of~~ extent (i) the ~~Governmental Authority imposing such tax~~ person that assigned or ~~any political subdivision~~ transferred the interest to the Participant or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment underAssignee, or ~~enforced~~designated the new lending office, was entitled to reimbursement for such Taxes under this ~~Agreement). If~~ Section 4.7 or (ii) the Participant or Assignee becomes a party to a Loan Document under Section 3.7, Section 12.6, or Article XIII; (v) [Reserved] (vi) any ~~such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are~~ United Kingdom taxes required to be deducted or withheld (a “UK Tax Deduction”) from a payment of interest under any ~~amounts payable~~ Loan Document if on the date on which the payment falls due: (A) the payment could have been made to the ~~Administrative Agent~~ relevant Lender without a UK Tax Deduction if it was a UK Qualifying Lender, but on that date that Lender is not or has ceased to be a UK Qualifying Lender other than as a result of any change after the date it became a Lender ~~hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender~~ under this Agreement in (~~after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates~~ or in the ~~amounts specified in this Agreement~~interpretation, administration, or application of) any law or Treaty, or any published practice or concession of any relevant taxing authority; ~~provided, however, that~~ or (B) the ~~US Borrower shall not be required to increase any such amounts payable to any~~ relevant Lender ~~that~~ is ~~not organized under the laws~~ a UK Qualifying Lender solely by virtue of ~~the United States of America or a state thereof (a “Non~~sub-~~U.S. Lender”) if such Lender fails to comply with the requirements of~~ paragraph (b) of the definition of UK Qualifying Lender and that relevant Lender has not given a Tax Confirmation to the Company where the payment could have been made to the relevant Lender without a UK Tax Deduction if that Lender had given a Tax Confirmation to the Company, on the basis that the Tax Confirmation would have enabled the Company to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the Taxes Act; or (C) the relevant Lender is a UK Qualifying Lender solely under sub-paragraph (b) of the definition of UK Qualifying Lender; an officer of HM Revenue and Customs (“HMRC”) has given (and not revoked) a direction (a “Direction”) under section 931 of the Taxes Act (as that provision has effect on the date on which the relevant Lender became a Lender) which relates to that payment and that Lender has received from a UK Borrower or Company a certified copy of that Direction; and the payment could have been made to the Lender without any UK Tax Deduction in the absence of that Direction; or (D) the relevant Lender is a Treaty Lender and the party making the payment is able to demonstrate that the payment could have been made to the Lender without the UK Tax Deduction had that Lender complied with its obligations under Section 4.7(d)(iii); and (vii) any Taxes imposed under FATCA; and (viii) any Polish taxes required to be deducted or withheld (a “Polish Tax Deduction”) from a payment of interest under any Loan Document if on the date on which the payment falls due: (A) the payment could have been made to the relevant Lender without a Polish Tax Deduction if it was a Polish Qualifying Lender, but on that date that Lender is not or has ceased to be a Polish Qualifying Lender other that as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration or application of ) any law or Treaty, or any published practice or concession of any relevant taxing authority; (B) the relevant Lender is a Treaty Lender and the party making the payment is able to demonstrate that the payment could have been made to the Lender without the Polish Tax Deduction had that Lender complied with its obligations under Section ~~5.4. Whenever~~ 4.7(d)(iii). (b) If any ~~Non-Excluded~~ Credit Party or Agent is required by law to make any deduction or withholding of any Taxes ~~are~~ from any payment due hereunder or under any of the Loan Documents (except for Taxes excluded under Section 4.7(a)(i), (ii), (iii), (iv), (v), (vi), (vii) and (viii)), then the amount payable by the ~~US Borrower~~ applicable Credit Party will be increased to such amount which, after deduction from such increased amount of all such Taxes required to be withheld or deducted therefrom, will not be less than the amount due and payable hereunder had no such deduction or withholding been required. If any Credit Party or Agent makes any payment hereunder or under any of the Loan Documents in respect of which it is required by law to make any deduction or withholding of any Taxes, it shall pay the full amount to be deducted or withheld to the relevant taxation or other Governmental Authority within the time allowed for such payment under Applicable Law and shall deliver to the Agent as soon as practicable after it has made such payment to the applicable authority an original or certified copy of such receipt issued by such authority evidencing the payment to such authority of all amounts so required to be deducted or withheld from such payment or such other evidence of payment that is reasonably satisfactory to Administrative Agent. (i) Without prejudice to or duplication of the provisions of Section 4.7(a), each Credit Party shall severally and not jointly indemnify the Administrative Agent, each Lender and the Administrative Agent on its behalf, within 10 days after demand therefor, for the full amount of any Taxes (including Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by the Administrative Agent, any Lender or the ~~UK Borrower~~Administrative Agent on its behalf or required to be withheld or deducted from a payment to the Administrative Agent, any Lender or the Administrative Agent on its behalf and any interest, penalties and expenses (including counsel fees and expenses but excluding any Taxes described in clauses (i) through (viii) of Section 4.7(a)) payable or incurred in connection therewith, including any Tax arising by virtue of payments under this Section 4.7(c), computed in a manner consistent with this Section 4.7(c). A certificate (showing in reasonable detail the basis for such calculation) as to the amount of such payment by such Lender, or Administrative Agent on its behalf, absent manifest error, shall be final, conclusive and binding upon all parties hereto for all purposes; and (ii) Each Lender and each Facing Agent shall indemnify the Administrative Agent within ten (10) days after demand therefor, for the full amount of any Excluded Taxes, together with any interest, penalties and expenses (including counsel fees and expenses associated with such Excluded Tax) and any taxes imposed as a result of the receipt of the payment under this Section 4.7(c)(ii), attributable to such Lender that are payable or paid by Administrative Agent, whether or not such Excluded Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender or Facing Agent by Administrative Agent shall be conclusive absent manifest error. Each Lender and each Facing Agent hereby authorize Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or Facing Agent, as the case may be, ~~as promptly as possible thereafter such US Borrower or UK Borrower shall send~~ under any Loan Document against any amount due to ~~the~~ Administrative Agent under this Section 4.7. The agreements in this Section 4.7 shall survive the resignation and/or replacement of Administrative Agent. Company shall also indemnify Administrative Agent, within ten (10) days after demand therefor, for ~~its own account~~ any amount attributable to Excluded Taxes, together with any interest, penalties and expenses (including counsel fees and expenses associated with such Excluded Tax) and any taxes imposed as a result of the receipt of the payment under this Section 4.7(c)(ii), in each case, arising under FATCA which a Lender or a Facing Agent for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, any reason fails to pay ~~any Non-Excluded Taxes when due~~ indefeasibly to ~~the appropriate taxing authority or fails to remit to the~~ Administrative Agent ~~the~~ as required ~~receipts~~ by this Section 4.7(c)(ii); provided, that such Lender or ~~other required documentary evidence, the US Borrower or the UK Borrower~~Facing Agent, as the case may be, shall indemnify Company to the extent of any payment the Company makes to Administrative Agent ~~and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in~~ pursuant to this Section ~~5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder~~4.7(c)(ii). ~~(b) Each Non-U.S. Lender shall:~~ (i) ~~deliver to the US Borrower and the Administrative~~ Each Lender or Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that ~~such Non-U.S. Lender~~ is not a ~~bank for purposes of~~ United States person (as such term in defined in Section ~~881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B~~7701(a)(3) of the Code) ~~of the US Borrower and is not a controlled foreign corporation related~~ agrees to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to ~~the US Borrower~~ Company and ~~the~~ Administrative Agent ~~two further copies of any such form or certification (or any applicable successor form)~~ on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the ~~date on which any such delivery would otherwise be required that renders any such form inapplicable~~ Restatement Date, or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or ~~Participant shall be~~ Agent that becomes a party to a Loan Document on a later date, the date such Lender or Agent becomes a party to a Loan Document, together with any other certificate or statement of exemption required ~~to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender~~under the Code, ~~or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph~~ (a) ~~above to~~ two (or more, as reasonably requested by Company or Administrative Agent) accurate and properly completed original signed copies of IRS Form W-8BEN or W-8ECI or W-8IMY (or successor forms), or (b), (x) a certificate substantially in the ~~extent that~~ form of Exhibit 4.7(d) (iany such certificate, a “Section 4.7(d) Certificate”) and (y) two (or more, as reasonably requested by Company or Administrative Agent) accurate and properly completed original signed copies of IRS Form W-8BEN (or successor form) or, in the ~~obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date~~ case of a partnership, IRS Form W-8IMY (or successor form) accompanied by an IRS Form W-8BEN (or successor form) from each of its partners or members. In addition, each such Non-U.S. ~~Lender became~~ Participant agrees that from time to time after the Restatement Date, when a ~~party~~ lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will timely deliver within thirty (30) days to ~~this Agreement~~ Company and Administrative Agent two (or more, as reasonably requested by Company or Administrative Agent) new accurate and properly completed original signed copies of IRS Form W-8BEN or W-8ECI or W-8IMY, or IRS Form W-8BEN (or, in the case of a ~~Participant that is not organized under the laws of the United States of America or~~ partnership, IRS Form W-8IMY and accompanying IRS Forms W-8BEN) and a ~~state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i~~Section 4.7(d) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative AgentCertificate, 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 Agent to a continued exemption from (or reduction in) United States withholding Tax with respect to payments under any Loan Document. To the extent a Non-U.S. Participant is ~~attributable~~ unable to deliver the forms required under this Section 4.7(d)(i), or the forms previously delivered are inaccurate in any material respects, it shall immediately notify Company and Administrative Agent. (ii) Each Lender and Agent that is a U.S. Person (as such ~~payment made by such US Borrower~~ term is defined in Section 7701(a)(30) of the Code) agrees to deliver to Company and Administrative Agent on or ~~UK Borrower~~prior to the Restatement Date, ~~then~~ or in the case of a Lender or Agent that becomes a party to a Loan Document on a later date, the date the Lender or Agent becomes a party to such Loan Document, two accurate and properly completed original signed copies of IRS Form W-9 (or successor form) certifying to such Lender’s or Agent’s entitlement to receive payments under such Loan Document without deduction for United States backup withholding tax. Each such Lender and Agent agrees from time to time after the Restatement Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will timely deliver to Company and Administrative Agent two (or more, as reasonably requested by Company or Administrative Agent) new accurate and properly completed original signed copies of IRS Form W-9 (or successor form). (iii) Each Lender and Agent shall, if requested by Company or Administrative Agent, within a reasonable period of time after such request, provide to Company, Administrative Agent or the applicable Governmental Authority any other tax forms or other documents or complete other formalities necessary or appropriate to avoid (or reduce) withholding for or on account of any Taxes imposed on payments under the Loan Documents pursuant to the laws of the jurisdiction of organization of any Credit Party, as applicable, provided, however, that no Lender or Agent shall be required to provide forms or documents or complete other formalities under this Section 4.7(d)(iii) to the extent the Lender or Agent determines (in its good faith discretion) that it is not legally entitled to do so or that providing such forms or documents or completing the other formalities would prejudice or disadvantage the Lender or Agent in any material respect. To the extent that a Lender or Agent is unable to deliver the forms or documents or complete the other formalities required under this Section 4.7(d)(iii) or the previous forms delivered are inaccurate in any material respects, the Lender or Agent shall promptly notify Company and Administrative Agent. (A) Nothing in this Section 4.7(d)(iii) shall require a Treaty Lender to (1) register under the HMRC DT Treaty Passport scheme, (2) apply the HMRC DT Treaty Passport scheme to any Loan if it has so registered, or file Treaty forms if it has (x) included an indication that it wishes the HMRC DT Treaty Passport scheme to apply to this Agreement in accordance with Section 4.7(d)(iii)(B) or (D) below, and the Borrower making that payment has not complied with its obligations under Section 4.7(d)(iii)(C), (E) or (G) below. Where a Borrower has been unable to comply with its obligations under Section 4.7(d)(iii)(C) or (E) due to the failure of the Administrative Agent or the relevant Lender to provide the indication described in Section 4.7(d)(iii)(B) or (D) (as the case may be), such inability shall ~~reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion~~ not constitute an Event of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4Default. (fB) ~~Each~~ A Treaty Lender ~~represents and agrees that,~~ which becomes a Party to this Agreement on the ~~Funding Date~~ date on which this Agreement is entered into that holds a passport under the HMRC DT Treaty Passport scheme, and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect which wishes that scheme to ~~the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.~~apply

Appears in 1 contract

Sources: Credit Agreement (Ball Corp)

Net Payments. ~~(a)~~ All payments made by ~~the US Borrower and the UK Borrower~~ or on account of any Credit Party under ~~this Agreement~~ any Credit Document shall be made free and clear of, and without deduction or withholding ~~for~~ for, any Taxes, except as required by applicable law (as determined in the good- faith discretion of the withholding agent). If any Indemnified Taxes or Other Taxes are required to be withheld or deducted from such payments, then the Credit Parties jointly and severally agree that (i) to the extent such deduction or withholding is on account ofof an Indemnified Tax or Other Tax, ~~any current~~ the sum payable by the Credit Parties shall be increased as necessary so that after making all required deductions or ~~future income~~withholding (including deduction or withholdings applicable to additional sums payable under this Section 4.01), ~~stamp~~ the Administrative Agent or ~~other taxes~~Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, ~~levies, imposts, duties, charges, fees,~~ (ii) the applicable withholding agent will make such deductions or withholdings, ~~now~~ and (iii) the applicable withholding agent shall timely pay the full amount deducted or ~~hereafter imposed~~withheld to the relevant Governmental Authority in accordance with applicable law. In addition, ~~levied, collected, withheld~~ the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law. As soon as practicable after any payment of Indemnified Taxes or ~~assessed by any~~ Other Taxes to a Governmental Authority, ~~excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on~~ the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party, a copy of the return reporting such payment or ~~any Lender~~ other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties jointly and ~~(ii) any taxes imposed on~~ severally agree to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within ten (10) days of written request therefor, for the amount of any Indemnified Taxes (including any Indemnified Taxes imposed on amounts payable under this Section 4.01) payable or ~~any Lender as a result of a current or former connection between~~ paid by the Administrative Agent or such Lender ~~and the jurisdiction of the Governmental Authority imposing such tax~~ or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are required to be withheld or deducted from ~~any amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable~~ a payment to the Administrative Agent or such ~~Lender shall be increased~~ Lender, and any Other Taxes, and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the ~~extent necessary~~ amount of such payment or liability delivered to ~~yield~~ the Borrower by a Lender or the Issuing Bank (with a copy to the Administrative ~~Agent~~ Agent), or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent on its own behalf or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) Each Non-U.S. Lender shall: (i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case behalf of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the ~~Administrative Agent, as applicable~~Issuing Bank, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4conclusive absent manifest error. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Abl Credit Agreement (Performance Sports Group Ltd.)

Net Payments. (a) All payments made by the US Borrower and the UK Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“"Non-Excluded Taxes”") are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “"Non-U.S. Lender”") if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or ~~the~~ UK Borrower showing payment thereof. ~~In addition, if~~ If the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, ~~the~~ such US Borrower or ~~the~~ UK ~~Borrower, as the case may be,~~ Borrower shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) Each Non-U.S. Lender shall: (i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “"portfolio interest”", United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b)~~; provided~~, provided that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased~~. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver~~. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “"Non-U.S. Participant”"), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such ~~Non~~ Non-U.S. Lender or ~~Non~~ Non-U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; ~~this Section 5.4(d) shall not apply~~ except to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the ~~Funding~~ Closing Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s 's or UK Borrower’s 's expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither ~~any~~ the Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (ed) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the ~~Funding~~ Closing Date and the Restatement Effective Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Credit Agreement (Rockwood Specialties Group Inc)

Net Payments. (a) All payments ~~made~~ by the ~~US Borrower and the UK~~ Borrower under this Agreement or under any Credit Document shall be made ~~free~~ without set-off or counterclaim and ~~clear of, and without~~ in such amounts as may be necessary in order that all such payments (after deduction or withholding for or on account ~~of,~~ of any ~~current~~ present or future ~~income, stamp or other~~ taxes, levies, imposts, ~~duties, charges, fees, deductions~~ duties or ~~withholdings, now or hereafter imposed, levied, collected, withheld or assessed~~ other charges of whatsoever nature imposed by any Governmental Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax government or any political subdivision or taxing authority ~~thereof or therein (~~thereof, other than any tax on the net income of a Bank pursuant to the income tax laws of the United States or jurisdictions where such ~~connection arising solely from the Administrative Agent~~ Bank's principal or ~~such Lender having executed~~lending office is located (collectively, ~~delivered or performed its obligations or received a payment under, or enforced, this Agreement). If any~~ such non-excluded ~~taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“~~taxes are hereinafter referred to as "Non-Excluded Taxes”")) ~~are~~ shall not be less than the amounts otherwise specified to be paid under this Agreement and/or any Credit Document. If the Borrower is required by law to make any deduction or withholding on account of Non-Excluded Taxes from any payment due hereunder or under the Notes, then (i) the Borrower shall timely remit such Taxes to the Governmental Authority imposing the same and (ii) the amount payable hereunder or under the Notes will be increased to such amount which, after deduction from such increased amount of all amounts required to be deducted or withheld ~~from~~ therefrom, will not be less than the amount otherwise due and payable. A certificate as to the calculation of any additional amounts payable to ~~the Administrative Agent or any Lender hereunder, the amounts so payable~~ a Bank under this Section 3.04 submitted to the ~~Administrative Agent~~ Borrower by such Bank shall, absent manifest error, be final, conclusive and binding for all purposes upon all parties hereto. With respect to each deduction or ~~such Lender shall be increased to the extent necessary to yield to the Administrative Agent~~ withholding for or ~~such Lender (after payment~~ on account of ~~all~~ any Non-Excluded Taxes, the Borrower shall promptly furnish to each Bank such certificates, receipts and other documents as may be required (in the judgment of such Bank) ~~interest~~ to establish any tax credit to which such Bank may be entitled. (b) Without prejudice to the provisions of paragraph (a) of this Section 3.04, if any Bank, or the Agent on its behalf, is required to make any payment on account of Non-Excluded Taxes on or in relation to any sum received or receivable under this Agreement and/or the other Credit Documents by such Bank, or the Agent on its behalf, or any liability for Non-Excluded Taxes in respect of any such payment is imposed, levied or assessed against any Bank, or the Agent on its behalf, the Borrower will promptly indemnify such Person against such Non-Excluded Tax payment or liability, together with any interest, penalties and expenses (including counsel fees and expenses) payable or incurred in connection therewith. The Borrower shall also reimburse each Bank, upon the written request of such Bank, for taxes imposed on or measured by the net income of such Bank pursuant to the laws of the jurisdiction in which the principal office or lending office of such Bank is located or under the laws of any political subdivision or taxing authority of any such jurisdiction as such Bank shall determine are payable by such Bank in respect of Non-Excluded Taxes paid to or on behalf of such Bank pursuant to this Section 3.04. For purposes of this Section, the term "Non-Excluded Taxes" includes interest, penalties and expenses payable or incurred in connection therewith. A certificate by such Bank, or the Agent on its behalf, as to the calculation and amount of such payments shall, absent manifest error, be final, conclusive and binding upon all parties hereto for all purposes. With respect to each deduction or withholding for or on account of any Non-Excluded Taxes, the Borrower shall promptly furnish to each Bank such certificates, receipts and other ~~amounts payable hereunder at the rates or~~ documents as may be required (in the ~~amounts specified in this Agreement; provided, however, that the US Borrower shall not~~ judgment of such Bank) to establish any tax credit to which such Bank may be ~~required to increase any such amounts payable to any Lender that is not~~ entitled. (c) Each Bank organized under the laws of a jurisdiction outside the United States ~~of America or~~ (hereinafter, a ~~state thereof (a “~~"Non-U.S. ~~Lender”~~Bank") shall, on or before the date the first payment is due from Borrower on any Borrowings made hereunder and from time to time thereafter if ~~such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable~~ requested in writing by the US Borrower (but only so long as such Bank remains lawfully able to do so), provide the Borrower with IRS Form W-8, Form 1001, or ~~the UK Borrower~~Form 4224, as ~~the case may be~~appropriate, ~~as promptly as possible thereafter such US Borrower~~ or UK Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable successor form prescribed by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) Each Non-U.S. Lender shall: (i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”IRS, ~~United States Internal Revenue Service Form W-8BEN (together with a certificate representing~~ indicating that such Non-U.S. ~~Lender~~ Bank is ~~not~~ entitled to complete or partial exemption from withholding on all payments to be received by it under this Agreement. If the form provided by such Bank indicates that such Bank is entitled to benefits under an income tax treaty to which the United States is a ~~bank for purposes of Section 881(c)~~ party and which reduces the rate of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by made hereunder below the ~~US Borrower under~~ U.S. statutory rate then in effect, such reduced withholding tax will be included in "Non-Excluded Taxes" as defined in this ~~Agreement;~~Section 3.04. (iid) ~~deliver~~ For any period with respect to which a Non-U.S. Bank has failed to provide the US Borrower ~~and~~ with the ~~Administrative Agent two further copies of any~~ appropriate form (unless such ~~form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring~~ failure is due to a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation ~~has occurred prior~~ occurring subsequent to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shallof this Agreement), upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. ~~Lender became a party~~ Bank shall not be entitled to ~~this Agreement (or, in the case of a Participant that is not organized~~ indemnification under ~~the laws of~~ Section 3.04(a) or 3.04(b) with respect to withholding taxes imposed by the United ~~States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder)~~States; provided, however, that ~~this clause~~ should a Bank which is otherwise exempt from or subject to a reduced rate of withholding tax become subject to Non-Excluded Taxes because of its failure to deliver a form required hereunder, the Borrower shall take such steps as such Bank shall reasonably request to assist such Bank to recover such Non-Excluded Taxes. (ie) ~~shall not apply~~ In the event a Non-U.S. Bank at the time of an assignment is entitled to the ~~extent that (x~~benefit of payments pursuant to Section 3.04(a) or Section 3.04(b), the ~~indemnity payments or additional amounts any Lender (or Participant) would~~ assignee of such Non-U.S. Bank shall be entitled to ~~receive~~ the same benefits (~~without regard to this clause (i)) do not exceed the indemnity payment or additional amounts~~ including further benefit of payments that ~~the person making the assignment, participation or transfer~~ may arise with respect to such ~~Lender (or Participant~~assignee) that would have been ~~entitled~~ available to ~~receive~~ the assignor Non-U.S. Bank in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply only to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant ~~Lender~~ amounts are incurred by or ~~the Administrative Agent, as applicable, shall cooperate~~ with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable respect to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4assignee. (f) ~~Each Lender represents and agrees that~~If the Borrower is required to pay additional amounts to for the account of any Bank pursuant to this Section 3.04, on then such Bank shall take efforts to change the ~~Funding Date and at all times during~~ jurisdiction of its lending office so as to eliminate or reduce any such additional amounts which may thereafter accrue if such change would not, in the ~~term~~ sole judgment of ~~this Agreement~~such Bank, ~~it is not and will not be a conduit entity participating~~ result in ~~a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented~~ any cost to such ~~arrangement prior thereto~~Bank. (g) Nothing contained in this Section 3.04 shall require any Bank to make available any of its tax returns or any other information that it deems to be confidential or proprietary.

Appears in 1 contract

Sources: Credit Agreement (Wells Aluminum Corp)

Net Payments. (a) All payments made by the US Borrower and the UK Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“"Non-Excluded Taxes”") are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “"Non-U.S. Lender”") if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) Each Non-U.S. Lender shall: (i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “"portfolio interest”", United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b)~~; provided~~, provided that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “"Non-U.S. Participant”"), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s 's or UK Borrower’s 's expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Credit Agreement (Rockwood Specialties Group Inc)

Net Payments. (a) All payments made by the ~~US Borrower and the UK~~ Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (~~“Non~~"NON-~~Excluded Taxes”~~EXCLUDED TAXES") are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; ~~provided~~PROVIDED, ~~however~~HOWEVER, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States ~~of America~~ or a state thereof ~~(a “Non-U.S. Lender”)~~ if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder5. (b) Each Non-U.S. Lender shall: (i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Credit Agreement (Willis Corroon Group LTD)

Appears in 1 contract

Sources: Credit Agreement (Grindr Inc.)

Net Payments. (a) ~~All~~ Except as required by law, all payments made by ~~the US Borrower and the UK Borrower~~ or on account of any obligation of a Credit Party under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental ~~Authority~~Authority (including any interest, ~~excluding~~ additions to tax and penalties applicable thereto) (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executedcollectively, ~~delivered or performed its obligations or received a payment under, or enforced, this Agreement~~“Taxes”). If any ~~such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings~~ Taxes that are not Excluded Taxes (“Non-Excluded Taxes”) are required to be withheld by a Withholding Agent from any amounts payable under this Agreement or any other Credit Document to ~~the Administrative~~ an Agent or ~~any Lender hereunder~~Lender, the applicable Credit Party shall increase the amounts so payable to ~~the Administrative~~ such Agent or ~~such~~ Lender ~~shall be increased~~ to the extent necessary to yield to ~~the Administrative~~ such Agent or ~~such~~ Lender (after ~~payment~~ withholding of all Non-Excluded ~~Taxes~~Taxes including those applicable to any amounts payable under this Section 5.4) interest or any such other amounts payable hereunder or thereunder at the rates or in the amounts specified ~~in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America~~ hereunder or ~~a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4~~thereunder. Whenever any ~~Non-Excluded~~ withholding Taxes are payable by any Credit Party in respect of amounts payable under any Credit Document to the ~~US Borrower~~ Administrative Agent or any Lender, promptly thereafter, the ~~UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower~~ applicable Credit Party shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official ~~receipt (~~receipt, a copy of the return reporting such payment or other evidence ~~acceptable to~~ of such ~~Lender, acting reasonably) received by such US Borrower or the UK Borrower showing~~ payment ~~thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit~~ reasonably satisfactory to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failureAgent. The agreements in this Section ~~5.4(a)~~ 5.4 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) In addition, each Credit Party shall pay any present or future stamp, documentary, filing, mortgage, recording or similar property or intangible taxes, charges or levies that arise from any payment made by such Credit Party hereunder or under any other Credit Documents or from the execution, delivery or registration or recordation of, from the receipt or perfection of a security interest or performance under, or otherwise with respect to, this Agreement or the other Credit Documents, except any Taxes imposed with respect to an assignment (other than an assignment requested by a Credit Party pursuant to Section 13.7(a)) as a result of a present or former connection between the assignor or assignee and the jurisdiction imposing such Tax (other than a connection arising solely from the assignor or assignee having executed, delivered, become a party to, performed its obligations under, received or perfected a security interest under, engaged in any transaction pursuant to, or enforced this Agreement) (hereinafter referred to as “Other Taxes”). (i) The Credit Parties shall jointly and severally indemnify each Lender and each Agent for and hold them harmless against the full amount of Non-Excluded Taxes and Other Taxes payable or paid by such Lender or Agent (as the case may be) or required to be withheld or deducted from a payment to such Lender or Agent (as the case may be) imposed or asserted (whether or not correctly or legally asserted) by any jurisdiction on any additional amounts or indemnities payable under this Section 5.4 and any liability (including penalties, additions to tax, interest and expenses) arising therefrom or with respect thereto; provided that if any claim pursuant to this Section 5.4(c)(i) is made later than 180 days after the date on which the relevant Lender or Agent had actual knowledge of the relevant Non-Excluded Taxes or Other Taxes, then the Credit Parties shall not be required to indemnify the applicable Lender or Agent for any penalties that accrue in respect of such Non-Excluded Taxes or Other Taxes after the 180th day. This indemnification shall be made within 30 days from the date such Lender or such Agent (as the case may be) makes written demand therefor. (ii) Each Lender shall, and does hereby, severally indemnify, and shall make payment in respect thereof within 10 days after demand therefor, (x) the Administrative Agent against any Non-Excluded Taxes attributable to such Lender (but only to the extent that any Credit Party has not already indemnified the Administrative Agent for such Non-Excluded Taxes and without limiting the obligation of Credit Parties to do so), (y) the Administrative Agent and the Credit Parties, as applicable, against any Taxes attributable to such ▇▇▇▇▇▇’s failure to comply with the provisions of Section 13.6(d)(ii) relating to the maintenance of a Participant Register and (z) the Administrative Agent and the Credit Parties, as applicable, against any Excluded Taxes attributable to such Lender that are payable or paid by the Administrative Agent or the Credit Parties in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Credit Document against any amount due to the Administrative Agent under this clause (ii). (d) Each Lender shall, at such times as are reasonably requested by the Borrower or the Administrative Agent, provide the Borrower and the Administrative Agent with any documentation prescribed by any Applicable Law or reasonably requested by the Borrower or the Administrative Agent (A) as will permit payments to be made pursuant to this Agreement or any other Credit Document to be made without, or at a reduced rate of, withholding or (B) 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. Each such Lender shall, whenever a lapse in time or change in circumstances renders such documentation obsolete, expired or inaccurate in any respect, deliver promptly to the Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrower or the Administrative Agent) or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so. Notwithstanding anything herein to the contrary, the completion, execution and submission of such documentation (other than such documentation set forth in Sections 5.4(d)(i) (other than clause (E) thereof), 5.4(e) and 5.4(g) below) shall not be required if in the Lender’s reasonable 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. Without limiting the foregoing, to the extent permitted by law, each Lender that is not a United States person within the meaning of Section 7701(a)(30) of the Code (a “Non-U.S. ~~Lender~~ Lender”) shall: (i) deliver to the US Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent) two properly executed copies of ~~either~~ whichever of the following is applicable: (A) in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party, (x) with respect to payments of interest under any Credit Document, United States Internal Revenue Service Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, United States Internal Revenue Service Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such treaty; (B) United States Internal Revenue Service Form W-8ECI; (C) in the case of Non-U.S. Lender claiming exemption from U.S. ~~Federal~~ federal withholding ~~tax~~ Tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, ,” United States Internal Revenue Service Form W-8BEN or W-8BEN-E (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section ~~881(c~~881(c)(3)(A) of the Code, is not a ~~10-~~10 percent shareholder of the Borrower (or, if the Borrower is an entity disregarded as an entity separate from its sole owner, such sole owner) within the meaning of Section 871(h)(3)(B) of the ~~Code) of the US Borrower~~ Code and is not a controlled foreign corporation related to the US Borrower (or, if the Borrower is an entity disregarded as an entity separate from its sole owner, such sole owner) within the meaning of Section ~~864(d)(4~~881(c)(3)(C) of the Code, substantially in the form of Exhibit L-1 (a “United States Tax Compliance Certificate”)); (D) to the extent a Non-U.S. Lender is not the Beneficial Owner (for example, where the Non-U.S. Lender is a partnership or a participating Lender), United States Internal Revenue Service Form W-8IMY (or any successor forms) of the Non-U.S. Lender, accompanied by a Form W-8ECI, W-8BEN or W-8BEN-E, a United States Tax Compliance Certificate substantially in the form of Exhibit L-2 or Exhibit L-3, Form W-9, Form W-8IMY or any other required information from each Beneficial Owner, as applicable (provided that, if the applicable Non-U.S. Lender is a partnership and one or more direct or indirect Beneficial Owners of such Non-U.S. Lender are claiming the portfolio interest exemption, a United States Tax Compliance Certificate substantially in the form of Exhibit L-4 may be provided by such Non-U.S. Lender on behalf of each such Beneficial Owner), or (yE) ~~Internal Revenue Service Form W-8BEN~~ any other form prescribed by applicable U.S. federal income Tax laws (including the United States Treasury Regulations) as a basis for claiming a complete exemption from, or ~~Form W-8ECI~~a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. ~~Federal~~ federal withholding ~~tax~~ Tax on payments by the US Borrower under this Agreement;; and (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete or inaccurate in any respect and promptly after the occurrence of any event requiring a change in the most recent form or certification previously delivered by it to the US Borrower~~; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent~~; unless in any such case ~~any change in treaty, law or regulation has occurred prior~~ such Lender is not legally entitled to ~~the date on which any such delivery would otherwise be required that renders~~ duly complete and deliver any such form ~~inapplicable~~ or ~~would prevent such Lender from duly completing and delivering any such form~~ certification with respect to it. Each Lender agrees that if any form or certification it ~~and~~ previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such ~~Lender so advises~~ form or certification or promptly notify the US Borrower and the Administrative ~~Agent. Each Person that shall become a Participant pursuant~~ Agent in writing of its legal inability to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Dateso. (e) If a payment made to a Lender under this Agreement or any other Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the ~~US Borrower~~ applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the ~~UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent~~Code, as applicable), such Lender shall ~~cooperate~~ deliver to the Withholding Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Withholding 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 the Withholding Agent as may be necessary for the Withholding Agent to comply with its obligations under FATCA, to determine that such Lender has or has not complied with such ~~US Borrower~~ ▇▇▇▇▇▇’s obligations under FATCA or ~~UK Borrower in challenging~~ to determine the amount to deduct and withhold from such ~~taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower~~payment. ~~If any Lender or the Administrative Agent, as applicable, receives a refund of a tax~~ Solely for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision purposes of this Section ~~5.4~~5.4(e), “FATCA” shall include any amendments made to FATCA after the Closing Date. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Credit Agreement (MultiPlan Corp)

Net Payments. (a) All payments made by ~~the US Borrower and the UK Borrower~~ or on account of any Credit Party under ~~this Agreement~~ any Credit Document shall be made free and clear of, and without deduction or withholding ~~for~~ for, any Taxes, except as required by applicable law. If any Taxes are required by applicable law to be withheld or deducted by any applicable withholding agent from such payments, (i) to the extent such deduction or withholding is on account ofof an Indemnified Tax or Other Tax, ~~any current~~ the sum payable shall be increased by the applicable Credit Party as necessary so that after all required deductions or ~~future income~~withholdings (including deductions or withholdings applicable to additional sums payable under this Section 5.01) have been made, ~~stamp~~ the Lender (or ~~other taxes~~the Administrative Agent if the Administrative Agent receives the payment for its own account) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, ~~levies~~subject to the provisions of the U.K Tax Schedule where the Borrower is a U.K. Borrower, ~~imposts, duties, charges, fees,~~ (ii) the applicable withholding agent will make such deductions or withholdings, ~~now~~ and (iii) the applicable withholding agent shall timely pay the full amount deducted or ~~hereafter imposed, levied, collected,~~ withheld ~~or assessed by any~~ to the relevant Governmental Authority. In addition, ~~excluding (i) net income taxes and franchise taxes (imposed~~ the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in ~~lieu of net income taxes) imposed on~~ accordance with applicable law. The Credit Parties will furnish to the Administrative Agent within 45 days after the date the payment by any of them of any Indemnified Taxes or ~~any Lender~~ Other Taxes is due pursuant to applicable law certified copies of tax receipts evidencing such payment by the applicable Credit Party. With respect to the U.S. Subfacility and ~~(ii) any taxes imposed on~~ the U.S. FILO Subfacility, the U.S. Credit Parties jointly and severally agree, and with respect to the Canadian Subfacility and the Canadian FILO Subfacility, the Credit Parties jointly and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or ~~any Lender as a result of a current~~ Other Taxes payable or ~~former connection between~~ paid by the Administrative Agent or such Lender ~~and the jurisdiction of the Governmental Authority imposing such tax~~ or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are required to be withheld ~~from~~ or deducted in respect of any ~~amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable~~ payment to the Administrative Agent or such Lender ~~shall be increased~~ under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 5.01), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the ~~extent necessary to yield to~~ amount of such payment or liability prepared in good faith and delivered by the Administrative Agent or such Lender (~~after payment of all Non-Excluded Taxes) interest~~ or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent ~~or any Lender as~~ on behalf of a ~~result of any such failure. The agreements in this Section 5.4(a~~Lender) shall ~~survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder~~be conclusive absent manifest error. (b) ~~Each Non-U.S.~~ Any Lender ~~shall: (i)~~ that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the ~~US Borrower~~ Company and the Administrative Agent, at the time or times reasonably requested by the Company or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Company or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax, including, where there is a U.K. Borrower, a passport under the HMRC DT Treaty Passport Scheme. In addition, each Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Company or the Administrative Agent, such other documentation prescribed by applicable law or reasonably requested by the Company or the Administrative Agent as will enable the Company or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 5.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the Company and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Company or the Administrative Agent) or promptly notify the Company and the Administrative Agent in writing of its inability to do so. (c) Without limiting the generality of the foregoing, (I) solely with respect to the U.S. Subfacility or the U.S. FILO Subfacility or any borrowing by any U.S. Borrower under the Canadian Subfacility or the Canadian FILO Subfacility: (x) each U.S. Revolving Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the Company and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of ~~either~~ (xA) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form), (ii) in the case of ~~Non-U.S.~~ a Lender claiming exemption from U.S. ~~Federal~~ federal withholding ~~tax~~ Tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest~~”, United States Internal Revenue Service Form W-8BEN (together with~~ ,” a certificate ~~representing that~~ substantially in the form of Exhibit C (any such ~~Non-~~certificate, a “U.S. ~~Lender is not a bank for purposes~~ Tax Compliance Certificate”) and two accurate and complete original signed copies of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form), (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, in Form W-8BEN, W-8BEN-E, U.S. Tax Compliance Certificate, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each ~~case properly completed~~ beneficial owner that would be required under this Section 5.01(c) if such beneficial owner were a Lender (provided that if the Lender is a partnership for U.S. federal income Tax purposes (and ~~duly executed~~ not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such ~~Non-~~Lender on behalf of such direct or indirect partner(s)) or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. ~~Lender~~ federal income tax laws (including the Treasury Regulations) as a basis for claiming a complete exemption from, or ~~reduced rate of~~a reduction in, U.S. ~~Federal~~ federal withholding ~~tax~~ Tax on any payments by to such Lender under the ~~US Borrower under this Agreement;~~ Credit Documents; and (iiy) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the ~~US Borrower~~ Company and the Administrative ~~Agent two further copies of any such form or certification (or any applicable successor form)~~ Agent, on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any ~~such delivery would otherwise be required~~ successor form, certifying that ~~renders any such form inapplicable or would prevent~~ such Lender is exempt from ~~duly completing~~ United States back-up withholding and ~~delivering any such form with respect~~ (II) each Lender to it the Canadian Borrowers and ~~such Lender so advises~~ U.K. Borrowers, if any, shall deliver to the ~~US Borrower~~ Company and the Administrative ~~Agent. Each Person that shall become a Participant pursuant to Section 14.6~~ Agent on or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements prior to the ~~Lender from~~ date on which ~~the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that~~ it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became becomes a party to this Agreement ~~(or, in the case~~ two accurate and complete original signed copies of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that either (x) ~~the indemnity payments~~ Internal Revenue Service Form W-9, or ~~additional amounts~~ any ~~Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts~~ successor form, certifying that ~~the person making the assignment, participation or transfer to~~ such Lender ~~(or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer,~~ is exempt from United States back-up withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such ~~assignment, participation or transfer had been requested by~~ Lender’s non-U.S. status. If any payment made to a Lender solely with respect to the ~~US Borrower~~ U.S. Subfacility or the ~~UK Borrower, (ii)~~ U.S. FILO Subfacility or any borrowing by any U.S. Borrower under the ~~obligation~~ Canadian Subfacility or the Canadian FILO Subfacility would be subject to ~~pay~~ U.S. federal withholding Tax imposed by FATCA if such ~~additional amounts would not have arisen but for a failure by such Non U.S.~~ Lender ~~or Non U.S. Participant~~ were to fail to comply with the ~~provisions~~ applicable reporting requirements of ~~paragraph~~ FATCA (bincluding those contained in Section 1471(b) ~~above~~ or ~~(iii~~1472(b) ~~any~~ of the ~~representations or certifications made by a Non-U.S.~~ Code, as applicable), such Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall ~~be limited~~ deliver to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender Company and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, ~~as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes~~ at ~~such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or~~ the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.time or

Appears in 1 contract

Sources: Credit Agreement (Resolute Forest Products Inc.)

Net Payments. (a) All payments made by ~~the US Borrower and the UK Borrower~~ or on behalf of any Credit Party under this Agreement or any other Credit Document shall be made ~~free and clear of, and~~ without deduction or withholding for or on account ofof any Taxes, ~~any current or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed~~ except as required by any Governmental Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement)Applicable Law. If any ~~such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”)~~ Taxes are required to be withheld from any amounts payable by or on behalf of any Credit Party under this Agreement or any other Credit Document (as determined in the good faith discretion of the applicable withholding agent), then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the ~~Administrative Agent or any Lender hereunder~~relevant Governmental Authority in accordance with Applicable Law, and if such Tax is a Non-Excluded Tax, then the Borrower shall increase the amounts so payable to the ~~Administrative Agent or such Lender shall be increased~~ applicable Recipient to the extent necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to ~~yield~~ additional sums payable under this Section) the applicable Recipient receives an amount equal to the ~~Administrative Agent~~ sum it would have received had no such deduction or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4withholding been made. Whenever any ~~Non-Excluded~~ Taxes are ~~payable~~ paid by ~~the US Borrower or the UK Borrower~~a Credit Party pursuant to this Section 5.04(a), as soon as practicable thereafter, the ~~case may be, as promptly as possible thereafter such US Borrower or UK~~ Borrower shall send to the Administrative Agent ~~for its own account~~ the original or ~~for the account of such Lender, as the case may be,~~ a certified copy of ~~an original official~~ a receipt (issued by the relevant Governmental Authority, a copy of the return reporting such payment, or other evidence ~~acceptable~~ of such payment reasonably satisfactory to ~~such Lender, acting reasonably) received by such US~~ the Administrative Agent. The Borrower or shall indemnify the ~~UK Borrower showing payment thereof. In addition, if~~ Agents and the ~~US Borrower or the UK Borrower, as the case may be, fails to pay~~ Lenders for any Non-Excluded Taxes ~~when due~~ (including Non-Excluded Taxes imposed or asserted on or attributable to amounts payable under this Section 5.04(a)) that are paid by any Agent or Lender or that are required to be withheld or deducted from a payment to any Agent or Lender and any reasonable expenses arising therefrom or with respect thereto, whether or not such Non-Excluded Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority, within ten (10) days after demand therefor. A certificate as to the ~~appropriate taxing authority~~ amount of such payment or ~~fails~~ liability delivered to ~~remit~~ the Borrower by an Agent or Lender (with a copy to the Administrative ~~Agent the required receipts~~ Agent), or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. In addition, the Borrower shall pay any ~~Lender as a result~~ Other Taxes to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent, shall timely reimburse it for the payment of any ~~such failure~~Other Taxes. The agreements in this Section ~~5.4(a~~5.04(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (bi) Each ~~Non-U.S.~~ Lender ~~shall: (i) deliver~~ that is entitled to ~~the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming~~ an exemption from ~~U.S. Federal~~ or reduction of withholding ~~tax under Section 871(h) or 881(c) of the Code~~ Tax with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this ~~Agreement; (ii)~~ Agreement shall deliver to the US Borrower ~~and~~ (with a copy to the Administrative ~~Agent two further copies of any such form~~ Agent), at the time or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may times reasonably be requested by the US Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by Applicable Law or reasonably requested by the Borrower or Administrative Agent as will permit such payments to be made without withholding or at a reduced rate; ~~unless in any such case any change in treaty~~provided, ~~law or regulation has occurred prior to the date on which any such delivery would otherwise be required~~ that ~~renders any such form inapplicable or would prevent~~ such Lender ~~from duly completing~~ is legally entitled to complete, execute and ~~delivering~~ deliver such documentation. In addition, any ~~such form with respect to it and such Lender so advises~~ Lender, if reasonably requested by the US Borrower ~~and~~ or the Administrative Agent, shall deliver such other documentation 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. Each Person that shall become a Participant pursuant to Section ~~14.6~~ 13.06 or a Lender pursuant to Section ~~14.6~~ 13.06 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section ~~5.4(b~~5.04(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding ~~anything to the contrary~~any other provision of this paragraph, no Lender ~~or Participant~~ shall be required to deliver any form (other than such documentation required by Sections 5.04(b)(ii)(A)-(C) and (iii)) that in such Lender’s reasonable judgment would subject such Lender to any material unreimbursed cost or ~~certification that it is not legally able to deliver~~expense or would materially prejudice the legal or commercial position of such Lender. (cii) ~~The US Borrower~~ Without limiting the generality of the foregoing, (A) any Lender that is a “United States Person” as defined in Section 7701(a)(30) of the Code shall ~~not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above~~ deliver to the ~~extent that (i)~~ Borrower and the ~~obligation to withhold amounts with respect to U.S. Federal withholding tax existed~~ Administrative Agent on or about the date on which such ~~Non-U.S.~~ Lender ~~became~~ becomes a ~~party to~~ Lender under this Agreement (orand from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), ~~in the case~~ executed copies of ~~a Participant~~ IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax; (B) any Lender that is not ~~organized under the laws~~ a “United States Person” as defined in Section 7701(a)(30) of the ~~United States of America or a state thereof~~ Code (a “Non-U.S. ~~Participant~~Lender”)) shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall reasonably be requested) on or about the date on which such Non-U.S. ~~Participant became~~ Lender becomes a ~~Participant hereunder); provided, however, that~~ Lender under this ~~clause~~ Agreement (~~i) shall not apply~~ and from time to time thereafter upon the ~~extent that (x)~~ reasonable request of the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the ~~UK Borrower~~Administrative Agent), (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any whichever of the ~~representations or certifications made by~~ following is applicable: (1) in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; (2) executed copies of IRS Form W-8ECI; (3) in the case of a Non-U.S. ~~Participant pursuant~~ Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit L-1 to ~~paragraph (b) above are incorrect at~~ the ~~time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having~~ effect ~~after the date~~ that such ~~representations or certifications were made. (d) Where a~~ Non-U.S. Lender is ~~not~~not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or ~~has ceased to be, an Eligible Lender on~~ a “controlled foreign corporation” within the ~~due date for payment~~ meaning of ~~any sum under this Agreement,~~ Section 957 of the ~~increased amount due under Section 5.4(a) hereof shall be limited~~ Code related to the ~~amount the UK~~ Borrower ~~would have had to pay if: (i~~as described in Section 881(c)(3)(C) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the ~~relevant double taxation agreement~~Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or (~~iii~~4) ~~where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply~~ to the extent ~~that the UK Borrower would have been required to make~~ a ~~deduction or withholding on account of tax regardless of whether such~~ Non-U.S. Lender is ~~an Eligible Lender. This Section 5.4(d~~not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-2 or Exhibit L-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Non-U.S. Lender is a partnership and one or more direct or indirect partners of such Non-U.S. Lender are claiming the portfolio interest exemption, such Non-U.S. Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such direct and indirect partner; (C) Any Non-U.S. Lender shall ~~not apply~~ deliver to the Borrower and the Administrative Agent (in ~~circumstances where~~ such number of copies as shall be requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender ~~ceases~~ under this Agreement (and from time to ~~be an Eligible Lender due to a change in~~ time thereafter upon the ~~Requirement~~ reasonable request of ~~Law or double taxation treaty or in its application or interpretation, in each case taking effect after~~ the ~~Funding Date. (e) If the US~~ Borrower ~~or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender~~ or the Administrative Agent), executed originals of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; (iii) Without limiting the generality of the foregoing, if a payment made to a Recipient under any Credit Document would be subject to United States federal withholding tax imposed by FATCA if such Recipient 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 Recipient shall ~~cooperate~~ deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower 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 the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Recipient has complied with such US Recipient’s obligations under FATCA or to determine the amount to deduct and withhold from such payment under FATCA, if any. Solely for the purposes of this clause (iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. (iv) Each Recipient agrees that if any form or certification it previously delivered pursuant to this Section 5.04(b) expires or becomes obsolete or inaccurate in any material respect, it shall update such form or certification or promptly notify the Borrower ~~or UK Borrower~~ and the Administrative Agent in ~~challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower.~~ writing of its legal inability to do so. (c) If any Lender or ~~the Administrative Agent~~any Agent determines, ~~as applicable~~in its sole discretion exercised in good faith, ~~receives~~ that it has received a refund of a ~~tax~~ Tax for which ~~a payment~~ it has been ~~made~~ indemnified by the ~~US Borrower or the UK~~ Borrower pursuant to this ~~Agreement~~Section 5.04 (including by the payment of additional amounts by the Borrower pursuant to this Section 5.04), ~~which refund in the good faith judgment of~~ then such Lender or ~~Administrative Agent, as the case may be, is attributable to~~ such ~~payment made by such US Borrower or UK Borrower, then the Lender or the Administrative~~ Agent, as the case may be, shall reimburse ~~such US Borrower or UK~~ the Borrower for such amount (~~together~~ but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 5.04 with respect to the Tax giving rise to such refund), net of all out-of-pocket expenses of such Agent or such Lender (including any Taxes imposed on the receipt of such refund) and without interest (other than any interest ~~received thereon~~paid by the relevant Governmental Authority with respect to such refund); provided, that the Borrower, upon the request of such 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 Governmental Authority) as to such Agent or such Lender in the event such Agent or such Lender ~~or Administrative Agent, as~~ is required to repay such refund to such Governmental Authority. Notwithstanding anything to the ~~case may be, determines to be the proportion of the refund as will leave it, after such reimbursement~~contrary in this paragraph (c), in no ~~better or worse~~ event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (c) the payment of which would place the indemnified party in a less favorable net after-Tax position than it the indemnified party would have been in if the ~~payment~~ Tax subject to indemnification and giving rise to such refund had not been ~~required~~deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any Agent or any Lender to make available its tax returns (or any other information relating to its Taxes which it deems confidential) to the Borrower or any other Person. (d) Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Non-Excluded Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Non-Excluded Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 13.06 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A ~~Lender~~ certificate as to the amount of such payment or ~~Administrative Agent shall claim any refund that it determines is available~~ liability delivered to ~~it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither~~ any Lender ~~nor~~ by the Administrative Agent shall be ~~obliged~~ conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to ~~disclose~~ set off and apply any ~~information regarding its tax affairs~~ and all amounts at any time owing to such Lender under any Credit Document or ~~computations~~ otherwise payable by the Administrative Agent to the ~~US Borrower or~~ Lender from any other source against any amount due to the ~~UK Borrower in connection with~~ Administrative Agent under this paragraph (~~e) or any other provision of this Section 5.4~~d). (fe) Each ~~Lender represents and agrees that, on~~ party’s obligations under this Section 5.04 shall survive the ~~Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1)~~ resignation or replacement of the ~~Code~~ Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the ~~regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto~~repayment, satisfaction or discharge of all obligations under any Credit Document.

Appears in 1 contract

Sources: Credit Agreement (Tiga Acquisition Corp.)

Net Payments. (a) All payments made by or on behalf of any Borrower to or on behalf of any Lender or Agent hereunder or under any Loan Document will be made without recoupment, setoff, counterclaim, or other defense. To the ~~US Borrower~~ extent permitted by applicable law, all payments hereunder and under any of the ~~UK Borrower under this Agreement~~ Loan Documents (including, without limitation, payments on account of principal and interest, and fees) to, or on behalf, of any Person shall be made by or on behalf of Borrowers free and clear ~~of,~~ of and without deduction or withholding ~~for~~ for, or on account of, any ~~current or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,~~ Taxes whatever nature now or hereafter ~~imposed, levied, collected, withheld or assessed~~ imposed by any Governmental Authority. (b) If any Borrower makes any payment hereunder or under any Loan Document in respect of which it is required by law to deduct or withhold any Taxes subject to Section 4.7(d) below, ~~excluding~~ such Borrower shall increase the payment hereunder or under any such Loan Document such that the net amount received by the Lender or Administrative Agent equals the net amount that would have been received had no such deduction or withholding occurred. Notwithstanding the foregoing, no increased payment will be made to the extent that the Taxes giving rise to such increased payment would not have been imposed, deducted or withheld but for the payment in a non-cooperative State or territory (Etat ou territoire non coopératif) within the meaning of Article 238. OA of the French tax code. To the extent any Borrower withholds any Taxes on payments hereunder or under any Loan Document, such Borrower shall pay the full amount to be deducted or withheld to the relevant taxation or other Governmental Authority within the time allowed for such payment under applicable law and shall deliver to Administrative Agent within 30 days after it has made such payment to the applicable authority a receipt issued by such authority (or other evidence satisfactory to Administrative Agent) evidencing the payment to such authority of all amounts so required to be deducted or withheld from such payment or such other evidence of payment that is reasonably satisfactory to Administrative Agent. (i) ~~net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the~~ If any Lender or Administrative Agent on its behalf, is required by law to make any payment on account of Taxes on or in relation to any amount received or receivable hereunder or under any other Loan Document or from the execution, delivery, registration, recording or enforcement of any Loan Document, or any Tax is assessed against a Lender or Administrative Agent with respect to amounts received or receivable hereunder or under any other Loan Document, or from the execution, delivery, registration, recording or enforcement of any Loan Document the applicable Borrower will promptly indemnify such person against such Tax payment or cost, loss or liability, together with any interest, penalties and expenses (iiincluding counsel fees and expenses associated with such Tax) and any taxes imposed ~~on the Administrative Agent or any Lender~~ as a result of ~~a current~~ the receipt of the payment under this Section 4.7(c). A certificate (showing in reasonable detail the basis for such calculation) as to the amount of such payment by such Lender or ~~former connection between~~ Administrative Agent on its behalf, absent manifest error, shall be final, conclusive, and binding upon on all parties; and (ii) Each Lender and each Facing Agent shall indemnify the Administrative Agent or within ten (10) days after demand therefor, for the full amount of any Excluded Taxes, together with any interest, penalties and expenses (including counsel fees and expenses associated with such Excluded Tax) and any taxes imposed as a result of the receipt of the payment under this Section 4.7(c)(ii), attributable to such Lender ~~and~~ that are payable or paid by Administrative Agent, whether or not such Excluded Taxes were correctly or legally imposed or asserted by the ~~jurisdiction of the~~ relevant Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement)Authority. ~~If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are required to be withheld from any amounts payable~~ A certificate as to the ~~Administrative Agent~~ amount of such payment or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable liability delivered to any Lender ~~that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if~~ by Administrative Agent shall be conclusive absent manifest error. Each Lender and each Facing Agent hereby authorize Administrative Agent to set off and apply any and all amounts at any time owing to such Lender ~~fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower~~ or ~~the UK Borrower~~Facing Agent, as the case may be, ~~as promptly as possible thereafter such US Borrower or UK~~ under any Loan Document against any amount due to Administrative Agent under this Section. The agreements in this section shall survive the resignation and/or replacement of Administrative Agent. The U.S. Borrower shall ~~send~~ also indemnify Administrative Agent, within ten (10) days after demand therefor, for any amount attributable to Excluded Taxes, together with any interest, penalties and expenses (including counsel fees and expenses associated with such Excluded Tax) and any taxes imposed as a result of the ~~Administrative~~ receipt of the payment under this Section 4.7(c)(ii), in each case, arising under FATCA which a Lender or a Facing Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, any reason fails to pay ~~any Non-Excluded Taxes when due~~ indefeasibly to ~~the appropriate taxing authority or fails to remit to the~~ Administrative Agent ~~the~~ as required ~~receipts~~ by this Section 4.7(c)(ii); provided, that such Lender or ~~other required documentary evidence, the US Borrower or the UK Borrower~~Facing Agent, as the case may be, shall indemnify the U.S. Borrower to the extent of any payment the U.S. Borrower makes to Administrative Agent ~~and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in~~ pursuant to this Section ~~5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder~~4.7(c)(ii). (bd) ~~Each~~ (i) To the extent permitted by applicable law, each Lender or Agent that is a Non-U.S. Participant (other than a Canadian Revolving Lender ~~shall: (i~~that has only a Canadian Revolving Commitment) shall deliver to ~~the US~~ Borrower and ~~the~~ Administrative Agent ~~two copies of either~~ on or prior to the Initial Borrowing Date (x) or in the case of a Lender that is an Assignee, on the date of such assignment to such Lender) two accurate and complete original signed copies of IRS Form W-8BEN, W-8ECI, or W-8IMY (or any successor or other applicable form prescribed by the IRS) certifying to such Lender’s or Agent’s entitlement to a complete exemption from, or a reduced rate of, United States withholding tax on interest payments to be made under this Agreement or any Note. If a Lender that is a Non-U.S. ~~Lender~~ Participant is claiming a complete exemption from ~~U.S. Federal~~ withholding ~~tax under~~ on interest pursuant to Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, the Lender shall deliver (along with two accurate and complete original signed copies of IRS Form W-8BEN) a certificate substantially in the form of Exhibit 4.7(d) (any such certificate, a Section 4.7(d)(i) Certificate”). In addition, each Lender and Agent that is ~~not~~ a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Participant (other than a Canadian Revolving Lender ~~claiming complete exemption from~~that has only a Canadian Revolving Commitment) agrees that from time to time after the Initial Borrowing Date, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a ~~Participant~~ Lender that is an Assignee, after the date of the assignment to such ~~Participant shall furnish all~~ Lender), when a lapse in time (or change in circumstances occurs) renders the prior certificates hereunder obsolete or inaccurate in any material respect, such ~~required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no~~ Lender or ~~Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender~~Agent shall, ~~or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above~~ to the extent ~~that~~ permitted under applicable law, deliver to the Borrower and Administrative Agent two new and accurate and complete original signed copies of an IRS Form W-8BEN, W-8ECI, or W-8IMY (i) or any successor or other applicable forms prescribed by the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”IRS), on and if applicable, a new Section 4.7(d)(i) Certificate, to confirm or establish the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer entitlement to such Lender (or ~~Participant) would have been entitled~~ Agent to ~~receive in the absence of such assignment, participation or transfer~~an exemption from, or ~~(y) such assignment~~reduction in, ~~participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation~~ United States withholding tax on interest payments to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications be made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) Agreement or any ~~other provision of this Section 5.4~~Note. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Credit Agreement (Crown Holdings Inc)

Net Payments. (a) All payments made by the ~~US Borrower~~ Borrowers and the ~~UK Borrower~~ other Credit Parties hereunder and under ~~this Agreement shall~~ any other Credit Document will be made without setoff, counterclaim or other defense. Except as provided in Section 5.04(b), and except as required by applicable law, all such payments will be made free and clear of, and without deduction or withholding ~~for or on account of~~for, any ~~current~~ present or future ~~income, stamp or other~~ taxes, levies, imposts, duties, ~~charges,~~ fees, ~~deductions~~ assessments or ~~withholdings,~~ other charges of whatever nature now or hereafter ~~imposed, levied, collected, withheld or assessed~~ imposed by any ~~Governmental Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent~~ jurisdiction or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding (i) any tax or withholding on account of tax imposed on or measured by the net income or net profits of a Lender or the Administrative Agent (as applicable) and any franchise taxes and branch profits taxes imposed pursuant to the laws of the jurisdiction in which it is resident or organized or the jurisdiction in which the principal office or applicable lending office of such Lender or the Administrative Agent (as applicable) is located or any subdivision thereof or therein, or any tax imposed as a result of a present or former connection between such Lender or the Administrative Agent (as applicable) and the jurisdiction imposing such tax (other than ~~any~~ connections arising only from such ~~connection arising solely from~~ Lender or the Administrative Agent ~~or such Lender~~ (as applicable) having executed, ~~delivered or~~ delivered, become a party to, performed its obligations under, received payments under, received or ~~received~~ perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Loan or Credit Document), (ii) in the case of a Lender, any U.S. Federal withholding tax that is imposed on amounts payable to such Lender at the time such 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 such U.S. Borrower with respect to such withholding tax pursuant to Section 5.04(a), (iii) Taxes attributable to a Lender’s failure to comply with Section 5.04(e), (iv) any United States federal withholding tax imposed under FATCA, (v) any tax imposed under the Income Tax Act (Canada) on any payment hereunder by a Credit Party to a Lender or the Administrative Agent (as applicable) by reason of such Credit Party not dealing at arm’s length for purposes of the Income Tax Act (Canada) with the Lender or the Administrative Agent (as applicable) at the time of such payment, (vi) any tax imposed under the Income Tax Act (Canada) on any payment hereunder by a Credit Party to a Lender or the Administrative Agent (as applicable) by reason of such Lender or the Administrative Agent (as applicable) being a “specified non-resident shareholder” (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Company or applicable Credit Party at any time during the year when such payment is made or by reason of such Lender or the Administrative Agent (as applicable) not dealing at arm’s length for purpose of the Income Tax Act (Canada) with a “specified shareholder” (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Company or applicable Credit Party at any time during the year in which such payment is made, and (vii) any withholding tax under the Income Tax Act (Canada) applicable to a payment ~~under~~by a Canadian Borrower in respect of a debt or other Obligation to pay an amount to a person with whom such Credit Party is not dealing at arm’s length for purposes of the Income Tax Act (Canada) (subparagraphs (i) through (vii) together, “Excluded Taxes”)) and all interest, penalties or ~~enforced, this Agreement). If any~~ similar liabilities with respect to such non-excluded taxes, levies, imposts, duties, ~~charges~~fees, assessments or other charges (all such non-excluded taxes, levies, imposts, duties, fees, ~~deductions~~ assessments or ~~withholdings (~~other charges being referred to collectively as “~~Non-Excluded~~ Taxes”). If any Taxes are so levied or imposed, the respective Borrower (and any other Credit Party making the respective payment or which has guaranteed the obligations of the relevant Borrower) ~~are required~~ agrees to pay the full amount of such Taxes, and such additional amounts as may be ~~withheld from~~ necessary so that every payment of all amounts due under this Agreement or under any ~~amounts payable~~ other Credit 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 other Credit Documents. The respective Borrower (or other Credit Party) will, upon the Administrative Agent’s written request, furnish to the Administrative ~~Agent~~ Agent, 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 ~~any Lender hereunder, the amounts so payable~~ other Credit Party) or other evidence of payment reasonably satisfactory to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunderAgent. (b) ~~Each Non-~~Subject to Section 14.07, the U.S. ~~Lender shall:~~ Borrowers (ijointly and severally) ~~deliver~~ or the Canadian Borrowers (jointly and severally), as applicable, agree (and the applicable Subsidiary Guarantors agree) to timely pay to the ~~US Borrower and~~ relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent ~~two copies of either (x) in~~ timely reimburse it for the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate payment of, ~~U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of~~ any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliverOther Taxes. (c) ~~The US Borrower shall not be required~~ Subject to ~~indemnify any Non-~~Section 14.07, the U.S. ~~Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph~~ Borrowers (ajointly and severally) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the ~~UK Borrower,~~ Canadian Borrowers (iijointly and severally) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agentshall, as applicable, ~~shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or~~ agree (and the ~~Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant~~ applicable Subsidiary Guarantors agree) to ~~this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the~~ indemnify each Lender or the Administrative Agent, as the case may be, within 10 days after demand therefor, for the full amount of any Taxes (including Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Lender or required to be withheld or deducted from a payment to such Lender and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Company by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall ~~reimburse~~ be conclusive absent manifest error; provided that the Borrowers shall not be required to compensate any Lender pursuant to this Section 5.04(c) for any such US Taxes incurred more than 180 days prior to the date that such Lender notifies the Company of the change giving rise to such Taxes and of such Lender’s intention to claim compensation therefor; provided, further, that, if the change giving rise to such Taxes is retroactive, then the 180 day period referred to above shall be extended to include the period of retroactive effect thereof. (d) Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Lender (but only to the extent that any Credit Party has not already indemnified the Administrative Agent for such Taxes and without limiting the obligation of Credit Parties, subject to Section 14.07, to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 13.04(e) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this clause (d). (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Company or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Company or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Company or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Company or the Administrative Agent as will enable the Company or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 5.04(e)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable 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. (ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Borrower, (A) any Lender that is a U.S. Person shall deliver to the Company and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), executed originals of Internal Revenue Service Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), whichever of the following is applicable: (i) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed originals of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; (ii) executed originals of Internal Revenue Service Form W-8ECI; (iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit D-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable; or (iv) to the extent a Foreign Lender is not the beneficial owner, executed originals of Internal Revenue Service Form W-8IMY, accompanied by Internal Revenue Service Form W-8ECI, Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-2 or Exhibit D-3, Internal Revenue Service Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-4 on behalf of each such direct and indirect partner; (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Company or the Administrative Agent to determine the withholding or deduction required to be made; and (D) if a payment made to a Lender under any Credit 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 the Company and the Administrative Agent at the time or times prescribed by law such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) as may be necessary for the Company 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. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. 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 the Company and the Administrative Agent in writing of its legal inability to do so. For purposes of determining withholding Taxes imposed under FATCA, from and after the Third Amendment Effective Date, the Borrower and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) the Loan Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i). (f) 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 a Borrower or UK with respect to which a Borrower ~~for~~ has paid additional amounts pursuant to Section 5.04(a), it shall pay to such Borrower an amount equal to such refund (~~together~~ but only to the extent of indemnity payments made, or additional amounts paid, by such Borrower under this Section with ~~any interest received thereon) as~~ respect to the ~~Lender~~ Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or ~~Administrative Agent~~such Lender, as the case may be, ~~determines~~ and without interest (other than any interest paid by the relevant jurisdiction or any political subdivision or taxing authority thereof with respect to be such refund), provided that the ~~proportion~~ U.S. Borrowers (on a joint and several basis) and the Canadian Borrowers (on a joint and several basis), as the case may be, upon the request of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent ~~shall be obliged~~ or such Lender, agree to ~~disclose~~ repay the amount paid over to any ~~information regarding its tax affairs~~ such Borrower (plus any penalties, interest or ~~computations~~ other charges imposed by the relevant jurisdiction or any political subdivision or taxing authority thereof) to the ~~US Borrower~~ Administrative Agent or such Lender in the ~~UK Borrower in connection with this paragraph (e)~~ event the Administrative Agent or such Lender is required to repay such refund to such jurisdiction or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.political subdivision

Appears in 1 contract

Sources: Abl Credit Agreement (Ciena Corp)

Net Payments. (a) All payments made by the US Borrower hereunder and ~~the UK Borrower~~ under ~~this Agreement shall~~ any Note will be made without setoff, counterclaim or other defense. All such payments will be made free and clear of, and without deduction or withholding for Taxes, unless such deduction or withholding is required by any law. If any such Taxes are Indemnified Taxes, the Borrower agrees to pay the full amount of such Indemnified 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 ofof any such Indemnified Taxes, will not be less than the amount provided for herein or in such Note had no such withholding or deduction been made. The Borrower will furnish to the Administrative Agent within 45 days after the date the payment of any ~~current~~ Taxes is due pursuant to applicable law certified copies of tax receipts (or ~~future income~~such other evidence reasonably satisfactory to the Administrative Agent) evidencing such payment by the Borrower (to the extent Borrower is responsible for making such withholding or deduction). The Borrower agrees to indemnify and hold harmless each Lender, ~~stamp~~ and reimburse such Lender upon its written request, for the amount of any Indemnified Taxes so levied or imposed and paid by such Lender. (b) Each Lender that is a United States person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes (other ~~taxes~~than a Lender that may be treated as an exempt recipient under Treasury Regulations Section 1.6049-4(c)(1)(ii), ~~levies~~subject to the provisions of Treasury Regulations Section 1.1441-1(d)(4)) agrees to deliver to the Borrower and the Administrative Agent on or prior to the Effective Date or, ~~imposts~~in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 2.13 or 13.04(b) (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer), ~~duties~~on the date of such assignment or transfer to such Lender, ~~charges~~an Internal Revenue Service Form W-9. 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 (“Foreign Lender”) and not described in the succeeding sentence (regarding Internal Revenue Service Form W-8IMY) agrees to deliver to the Borrower and the Administrative Agent on or prior to the Effective Date or, ~~fees~~in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 2.13 or 13.04(b) (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer), ~~deductions~~ on the date of such assignment or ~~withholdings~~transfer to such Lender, ~~now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding~~ (i) ~~net~~ two accurate and complete original signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption or reduction under an income ~~taxes~~ tax treaty) (or successor forms) certifying to such Lender’s entitlement as of such date to a complete exemption or reduction in from United States withholding tax with respect to payments to be made under this Agreement and ~~franchise taxes~~ under any Note, or (~~imposed~~ ii) if the 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 ~~lieu~~ the form of ~~net income taxes~~Exhibit D (any such certificate, a “Section 5.04(b)(ii) ~~imposed on~~ 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 made under this Agreement and under any Note.) In the case of a Foreign Lender that is not the beneficial owner of payments made under this Agreement or any Note (including a partnership or a participating Lender), such Foreign Lender shall deliver to the Borrower and the Administrative Agent on or ~~any~~ prior to the Effective Date or, in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 2.13 or 13.04(b) (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer), on the date of such assignment or transfer to such Lender, (i) two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY on behalf of itself and (ii) the relevant forms prescribed in the preceding two sentences as applicable that would be required of each such beneficial owner or partner of such partnership if such beneficial owner or partner were a Lender. In addition, each Foreign Lender shall, in the case of any ~~taxes imposed~~ payment made after December 31, 2012 in respect of any Loan, Letters of Credit, Note or Obligation that was not treated as outstanding for purposes of FATCA on March 18, 2012, provide any forms, documentation, or other information as shall be prescribed by the Internal Revenue Service to demonstrate that the relevant Foreign Lender has complied with the applicable reporting requirements of FATCA. 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 certification or forms in the second and third preceding sentences obsolete or inaccurate in any material respect, such Foreign Lender will deliver to the Borrower and the Administrative Agent ~~or any Lender as a result~~ two new accurate and complete original signed copies of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein Internal Revenue Service Form W-8ECI, Form W-8BEN (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are required to be withheld from any amounts payable with respect to the ~~Administrative Agent or~~ benefits of any ~~Lender hereunder~~income tax treaty), ~~the amounts so payable~~ Form W-8BEN (with respect to the ~~Administrative Agent~~ portfolio interest exemption) and a Section 5.04(b)(ii) Certificate or ~~such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender~~ Internal Revenue Service Form W-8IMY (~~after payment of~~ together with all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrowerunderlying forms), as the case may be, and such other forms as ~~promptly as possible thereafter such US Borrower~~ may be required in order to confirm or ~~UK Borrower shall send to~~ establish the ~~Administrative Agent for its own account or for the account~~ entitlement of such ~~Lender, as the case may be,~~ Foreign Lender to a ~~certified copy of an original official receipt (~~continued exemption from or ~~other evidence acceptable~~ reduction in United States withholding tax with respect to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of payments under this Agreement and any Note, or such Foreign Lender shall immediately notify the ~~payment of the Loans and all other amounts payable hereunder. (b) Each Non-U.S. Lender shall: (i) deliver to the US~~ Borrower and the Administrative Agent ~~two copies~~ of ~~either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h)~~ its inability to deliver any such Form or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECICertificate, in ~~each~~ which case ~~properly completed and duly executed by~~ such ~~Non-U.S.~~ Foreign Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall not be required to deliver any ~~form~~ such Form or ~~certification that it is not legally able~~ Certificate pursuant to ~~deliver~~this Section 5.04(b). (c) ~~The US~~ If the Borrower ~~shall not be required to indemnify any Non-U.S. Lender, or to pay~~ pays any additional ~~amounts~~ amount under this Section 5.04 to a Lender and such Lender determines in its sole discretion that it has actually received in connection therewith any ~~Non-U.S. Lender,~~ refund of its Tax liabilities in ~~respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts~~ or with respect to ~~U.S. Federal withholding tax existed on~~ the ~~date such Non-U.S. Lender became a party to this Agreement (or,~~ taxable year in which the ~~case of a Participant that~~ additional amount is ~~not organized under the laws of the United States of America or a state thereof~~ paid (a “~~Non-U.S. Participant~~Tax Benefit”), on such Lender shall pay to the ~~date~~ Borrower an amount that the Lender shall, in its sole discretion, determine is equal to the net benefit, after tax, which was obtained by such ~~Non-U.S. Participant became~~ Lender in such year as a ~~Participant hereunder)~~consequence of such Tax Benefit; provided, however, that ~~this clause~~ (i) ~~shall not apply to the extent that (x) the indemnity payments or additional amounts~~ any Lender ~~(or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed~~ may determine, in its sole discretion consistent with the ~~indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence~~ policies of such ~~assignment~~Lender, ~~participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower~~whether to seek a Tax Benefit, (ii) ~~the obligation~~ any Taxes that are imposed on a Lender as a result of a disallowance or reduction of any Tax Benefit with respect to ~~pay~~ which such ~~additional amounts would not have arisen but for a failure by such Non U.S.~~ Lender ~~or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications~~ has made ~~by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time~~ a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this ~~Agreement,~~ Section 5.04(c) shall be treated as a Tax for which ~~refund in~~ the ~~good faith judgment of~~ Borrower is obligated to indemnify such Lender pursuant to this Section 5.04 without any exclusions or ~~Administrative Agent~~defenses, ~~as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be,~~ (iii) nothing in this Section 5.04(c) shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither require any Lender ~~nor the Administrative Agent shall be obliged~~ to disclose any confidential information ~~regarding~~ to the Borrower (including, without limitation, its tax ~~affairs or computations~~ returns), and (iv) no Lender shall be required to ~~the US Borrower or the UK Borrower in connection with this paragraph (e) or~~ pay any ~~other provision of~~ amounts pursuant to this Section ~~5.4~~5.04(c) at any time when a Default or an Event of Default exists. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Credit Agreement (Town Sports International Holdings Inc)

Net Payments. (a) All payments made by ~~the US Borrower and the UK Borrower~~ Borrowers hereunder or under ~~this Agreement~~ any Loan Document shall be made without setoff, counterclaim, or other defense. To the extent permitted by applicable law, all payments hereunder and under any Loan Document (including, without limitation, any payment of principal, interest, or fees) to, or for the benefit, of any Person shall be made by Borrowers free and clear ~~of,~~ of and without deduction or withholding ~~for~~ for, or on account of, any ~~current~~ tax, duty, levy, impost, deduction, charge, withholding, or ~~future income~~assessment now or hereinafter imposed by any Governmental Authority. (b) If any Borrower makes any payment hereunder or under any Loan Document in respect of which it is required by law to deduct or withhold any Taxes, ~~stamp~~ such Borrower shall increase the payment hereunder or ~~other~~ under any such Loan Document such that after the reduction for the amount of Taxes withheld (and any taxes withheld or imposed with respect to the additional payments required under this Section 2.8(b)) the amount paid to the Lender or Administrative Agent equals the amount that was payable hereunder or under any such Loan Document without regard to this Section 2.8(b). To the extent any Borrower withholds any taxes, duties, levies, imposts, ~~duties~~deductions, charges, ~~fees, deductions or~~ withholdings, ~~now~~ or ~~hereafter imposed~~assessments on payments hereunder or under any Loan Document, ~~levied~~such Borrower shall pay the full amount deducted to the relevant Governmental Authority within the time allowed for payment under applicable law and shall deliver to the Administrative Agent within 30 days after it has made payment to such authority a receipt issued by such authority (or other evidence satisfactory to the Administrative Agent) evidencing the payment of all amounts so required to be deducted or withheld from such payment. (c) If any Lender or Administrative Agent is required by law to make any payments of any Taxes on or in relation to any amounts received or receivable hereunder or under any other Loan Document, ~~collected~~or any Tax is assessed against a Lender or Administrative Agent with respect to amounts received or receivable hereunder or under any other Loan Document, ~~withheld or assessed by any Governmental Authority, excluding~~ each Borrower will indemnify such person against (i) ~~net income taxes~~ such Tax (and ~~franchise taxes (imposed in lieu of net income taxes~~any reasonable counsel fees and expenses associated with such Tax) ~~imposed on the Administrative Agent or any Lender~~ and (ii) any ~~taxes~~ Taxes imposed ~~on the Administrative Agent or any Lender~~ as a result of ~~a current~~ the receipt of the payment under this Section 2.8(c). A certificate prepared in good faith as to the amount of such payment by Lender or ~~former connection between the~~ Administrative Agent ~~or such Lender~~ shall, absent manifest error, be final, conclusive, and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of binding on all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunderparties. ~~(b) Each Non-U.S. Lender shall:~~ (i) To the extent permitted by applicable law, each Lender that is a Non-U.S. Participant shall deliver to the ~~US Borrower~~ Funds Administrator and ~~the~~ Administrative Agent ~~two copies of either~~ on or prior to the Restatement Date (x) or in the case of a Lender that is an Assignee, on the date of such assignment to such Lender) two accurate and complete original signed copies of IRS Form W-8BEN, W-8ECI, or W-8IMY (or any successor or other applicable form prescribed by the IRS) certifying to such Lender’s entitlement to a complete exemption from, or a reduced rate in, United States withholding tax on interest payments to be made under this Agreement or any Note. If a Lender that is a Non-U.S. ~~Lender~~ Participant is claiming a complete exemption from ~~U.S. Federal~~ withholding ~~tax under Section 871(h) or 881(c) of the Code with respect~~ on interest pursuant to ~~payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of~~ Section 881(c) of the Code, the Lender shall deliver (along with two accurate and complete original signed copies of IRS Form W-8BEN) a certificate substantially in the form of Exhibit 2.8(d)(i) (any such certificate, a “Section 2.8(d)(i) Certificate”). In addition, each Lender that is a Non-U.S. Participant agrees that from time to time after the Restatement Date, (or in the case of a Lender that is an Assignee, after the date of the assignment to such Lender), when a lapse in time (or change in circumstances occurs) renders the prior certificates hereunder obsolete or inaccurate in any material respect, such Lender shall, to the extent permitted under applicable law, deliver to the Funds Administrator and Administrative Agent two new and accurate and complete original signed copies of an IRS Form W-8BEN, W-8ECI, or W-8IMY (or any successor or other applicable forms prescribed by the IRS), and if applicable, a new Section 2.8(d)(i) Certificate, to confirm or establish the entitlement to such Lender or Administrative Agent to an exemption from, or reduction in, United States withholding tax on interest payments to be made under this Agreement or any Note. (e) Each Lender that is not a 10Non-~~percent shareholder~~ U.S. Participant (~~within the meaning of Section 871(h)(3)(B~~other than any such Lender which is taxed as a corporation for U.S. federal income tax purposes) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case shall provide two properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of ~~any such form or certification~~ IRS Form W-9 (or any successor or other applicable ~~successor~~ form) ~~on or before the date that any such form or certification expires or becomes obsolete~~ to Funds Administrator and ~~after the occurrence of any event requiring a change in the most recent form previously delivered by it~~ Administrative Agent certifying to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender or Administrative Agent is exempt from ~~duly completing and delivering any such~~ United States backup withholding tax. To the extent that a form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required provided pursuant to this Section ~~5.4(b); provided, that~~ 2.8(e) is rendered obsolete or inaccurate in ~~the case~~ any material respects as result of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, change in ~~respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts~~ circumstances with respect to ~~U.S. Federal withholding tax existed on~~ the ~~date such Non-U.S. Lender became a party to this Agreement (or, in the case~~ status of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, ~~as the case may be, is attributable to~~ such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent ~~shall claim any refund that it determines is available~~ shall, to itthe extent permitted by applicable law, ~~unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the~~ deliver to Funds Administrator and Administrative Agent ~~shall be obliged~~ revised forms necessary to ~~disclose any information regarding its tax affairs~~ confirm or ~~computations to~~ establish the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented entitlement to such ~~arrangement prior thereto~~Lender’s or Administrative Agent’s exemption from United States backup withholding tax.

Appears in 1 contract

Sources: Revolving Credit Agreement (TPC Group Inc.)

Net Payments. (a) ~~All~~ Except as otherwise required by law, all payments made by the US Borrower ~~and~~ to any Lender or the ~~UK Borrower~~ Administrative Agent under this Agreement and/or any Loan Document shall be made free and clear of, and without ~~deduction or withholding~~ reduction for or on account of, any ~~current~~ present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding ~~(i) net income taxes~~ income, bank shares and franchise taxes (imposed by any jurisdiction in ~~lieu of net income taxes) imposed on the Administrative Agent~~ which such Lender's principal or ~~any Lender and (ii) any taxes imposed on the Administrative Agent~~ lending office is located or ~~any Lender as a result of a current or former connection between the Administrative Agent or~~ in which such Lender ~~and the jurisdiction of the Governmental Authority imposing such tax~~ is engaged in a trade or business or any political subdivision or taxing authority thereof or therein (~~other than any~~ such ~~connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement~~non-excluded taxes being called "Taxes"). If any ~~such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”)~~ Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender ~~hereunder~~under this Agreement and/or any Loan Document, the Borrower shall timely remit such taxes to the Governmental Authority imposing the same and the amounts so payable to ~~the Administrative Agent or~~ such Lender shall be increased to the extent necessary to yield to ~~the Administrative Agent or~~ such Lender (after payment of all ~~Non-Excluded~~ Taxes) interest or any such other amounts payable ~~hereunder~~ at the rates or in the amounts specified in this ~~Agreement; provided, however, that the US Borrower shall not be required to increase~~ Agreement and/or any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4Loan Document. Whenever any ~~Non-Excluded Taxes are~~ Tax is payable by the ~~US Borrower or the UK~~ Borrower~~, as the case may be~~, as promptly as possible ~~thereafter such US Borrower or UK~~ thereafter, the Borrower shall send to the Administrative ~~Agent~~ Agent, for its own account or ~~for~~ the account of such Lender, as the case may be, a certified copy of an original official receipt ~~(or other evidence acceptable to such Lender, acting reasonably)~~ received by ~~such US Borrower or~~ the UK Borrower showing payment thereof. ~~In addition~~Without prejudice to the foregoing, if ~~the US Borrower~~ any Lender or the ~~UK Borrower~~Administrative Agent is required to make any payment on account of Taxes, the Borrower will, upon notification by the Lender or the Administrative Agent, promptly indemnify such Person against such Taxes. For purposes of this Section 2.12, the term "Taxes" includes interest, penalties and expenses payable or incurred in connection therewith. A certificate as to any additional ain reasonable detail the calculation thereof, or, alternatively, including a copy of the notice from the taxing jurisdiction notifying the Lender of its liability for Taxes) payable to a Lender under this Section 2.12 submitted to the Borrower by such Lender shall, absent manifest error, be final, conclusive and binding for all purposes upon all parties hereto. The Lender shall submit such certification or otherwise provide written notice to the Borrower within a reasonable period of time after becoming aware of any Taxes for which it is entitled to payments of additional amounts under this Section 2.12. (b) Prior to the date of initial funding by each Lender that is not incorporated under the laws of the United States of America or a state thereof, such Lender will deliver to the Borrower and the Administrative Agent two duly completed copies of United States Internal Revenue Service Form 1001 or 4224 or successor applicable form, as the case may be, ~~fails~~ certifying in each case that such Lender is entitled to ~~pay~~ receive payments under this Agreement and/or any ~~Non-Excluded Taxes when due~~ Loan Document payable to it, without deduction or withholding of any United States federal income taxes. Each Lender that delivers to the ~~appropriate taxing authority or fails to remit to~~ Borrower and the Administrative Agent a Form 1001 or 4224 pursuant to the ~~required receipts or other required documentary evidence~~preceding sentence, ~~the US Borrower or the UK Borrower~~and each assignee, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) Each Non-U.S. Lender shall: (i) undertakes to deliver to the US Borrower and the Administrative Agent two copies of ~~either (x) in~~ the said Form 1001 or 4224, or successor applicable forms, or other manner of certification, as the case ~~of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”~~may be, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form ~~or certification~~ previously delivered expires or becomes obsolete ~~and~~ or after the occurrence of any event requiring a change in the most recent form previously delivered by it to the ~~US Borrower; and (iii) obtain~~ Borrower and the Administrative Agent, and such extensions ~~of time for filing and complete such forms~~ or ~~certifications~~ renewals thereof as may reasonably be requested by the ~~US Borrower~~ Borrower, certifying in the case of a Form 1001 or ~~the Administrative Agent;~~ 4224 that such Lender is entitled to receive payments under this Agreement and/or any other Loan Document without deduction or withholding of any United States federal income taxes, unless in any such ~~case~~ cases an event (including without limitation any change in treaty, law or ~~regulation~~ regulation) has occurred subsequent to the Closing Date and prior to the date on which any such delivery would otherwise be required ~~that~~ which renders ~~any~~ all such ~~form~~ forms inapplicable or which would prevent such Lender from duly completing and delivering any such form with respect to ~~it and~~ it. Each such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required which is not able to provide ~~all~~ the ~~forms and statements required pursuant to~~ applicable form shall advise the Borrower that it is not capable of receiving payments without any deduction or withholding of United States federaltwithstanding any other provision of this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary2.12, no Lender ~~or Participant~~ shall be required to deliver any form ~~or certification~~ pursuant to this Section 2.12 that it such Lender is not legally able to deliver. (c) The US Borrower shall not be required to ~~indemnify any Non-U.S. Lender, or to~~ pay any ~~additional amounts~~ increased amount on account of Taxes pursuant to this Section 2.12 to any ~~Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above~~ Lender to the extent that ~~(i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date~~ such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts Taxes would not have ~~arisen but for~~ been payable if such Lender had furnished a form required by Section 2.12(b), unless such failure ~~by such Non U.S. Lender or Non U.S. Participant~~ results from any event subsequent to ~~comply with~~ the ~~provisions of paragraph~~ date hereof (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of including without limitation any change in treaty, law or ~~regulation having effect after the date such representations or certifications were made. (d~~regulation) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change specified in the ~~Requirement~~ second sentence of ~~Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date~~Section 2.12(b). (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Loan Agreement (CSS Industries Inc)

Net Payments. (a) All payments made by the US Borrower ~~and~~ hereunder shall be made without setoff, counterclaim or other defense. All payments made by the UK Borrower under this Agreement and any Note shall be made free and clear of, and without deduction or withholding for or on account of, any ~~current~~ present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding ~~(i)~~ net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any Lender ~~and (ii) any taxes imposed on the Administrative Agent or any Lender~~ as a result of a ~~current~~ present or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the ~~Administrative Agent or such Lender~~ Lenders having executed, delivered or performed its obligations or received a payment under, or enforced, this ~~Agreement~~Agreement or any Note). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“"Non-Excluded Taxes”") are required to be withheld from any amounts payable to ~~the~~ Administrative Agent or any Lender ~~hereunder~~hereunder or under any Note, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the ~~US Borrower or the UK~~ Borrower~~, as the case may be~~, as promptly as possible thereafter ~~such US Borrower or UK~~ the Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt ~~(or other evidence acceptable to such Lender, acting reasonably)~~ received by ~~such US Borrower or~~ the UK Borrower showing payment thereof. ~~In addition, if~~ If the US Borrower ~~or the UK Borrower, as the case may be,~~ fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, then the US Borrower ~~or the UK Borrower, as the case may be,~~ shall indemnify the Administrative Agent and the Lenders for any incremental taxes, ~~interest, costs~~ interest or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this ~~Section 5.4(a)~~ subsection 3.7 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) Each ~~Non-U.S.~~ Lender that is not incorporated under the laws of the United States of America or a state thereof shall: (i) deliver to the US Borrower and the Administrative Agent (A) two duly completed copies of ~~either (x) in~~ the ~~case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”,~~ United States Internal Revenue Service Form W-8BEN ~~(together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of~~ or W-8ECI, or successor applicable form, as the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code))case may be, or (yB) an Internal Revenue Service Form W-8BEN or ~~Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from~~W-9, or ~~reduced rate of~~successor applicable form, ~~U.S. Federal withholding tax on payments by~~ as the ~~US Borrower under this Agreement~~case may be; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification ~~(or any applicable successor form)~~ on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case an event (including, without limitation, any change in treaty, law or ~~regulation~~ regulation) has occurred prior to the date on which any such delivery would otherwise be required ~~that~~ which renders ~~any~~ all such ~~form~~ forms inapplicable or which would prevent such Lender ~~from~~ form duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Such Lender shall certify (i) in the case of a Form W-8BEN or W-8ECI, that it is entitled to receive payments under this Agreement without deduction or withholding of any United States federal income taxes and (ii) in the case of Form W-8BEN or W-9, that it is entitled to an exemption from United States backup withholding tax. Each Person that shall become a Lender or a Participant pursuant to ~~Section 14.6 or a Lender pursuant to Section 14.6~~ subsection 11.8 shall, upon the effectiveness of the related transfer, be required to provide all of the forms and statements required pursuant to this ~~Section 5.4(b); provided~~subsection 3.7, ~~that~~ provided that, in the case of a ~~Participant~~ Participant, such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased~~. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver~~. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender shall receive a credit or ~~the Administrative Agent~~refund from a taxing authority with respect to, ~~as applicable~~and actually resulting from, ~~receives a refund~~ an amount of ~~a tax for which a payment has been made by the US Borrower~~ Non-Excluded Taxes actually paid to or ~~the UK Borrower pursuant to this Agreement, which refund in the good faith judgment~~ on behalf of such Lender ~~or Administrative Agent~~by the Borrower (a "Tax Credit"), ~~as the case may be, is attributable to~~ such ~~payment made by such US Borrower or UK Borrower, then the~~ Lender ~~or the Administrative Agent, as the case may be,~~ shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.promptly notify the

Appears in 1 contract

Sources: Credit Agreement (Tefron LTD)

Net Payments. (a) All payments made by the US Borrower hereunder ------------ or under any Credit Document will be made without setoff, counterclaim or other defense. Except as provided in Section 4.04, all payments hereunder and under ------------ any of the ~~UK Borrower under this Agreement~~ Credit Documents (including, without limitation, payments on account of principal and interest and fees) shall be made by the Borrower free and clear ~~of,~~ of and without deduction or withholding for or on account ~~of,~~ of any ~~current~~ present or future ~~income~~tax, ~~stamp~~ duty, levy, impost, assessment or other ~~taxes, levies, imposts, duties, charges, fees, deductions or withholdings,~~ charge of whatever nature now or hereafter ~~imposed, levied, collected, withheld or assessed~~ imposed by any Governmental Authority, but excluding therefrom (i) a tax imposed on or measured by the overall net income ~~taxes and~~ (including a franchise ~~taxes~~ tax based on net income) of the lending office of the Lender in respect of which the payment is made by the jurisdiction in which the Lender is incorporated or the jurisdiction (~~imposed~~ or political subdivision or taxing authority thereof) in ~~lieu of net income taxes) imposed on the Administrative Agent or any Lender and~~ which its lending office is located, (ii) in the case of any Lender organized under the laws of any jurisdiction other than the United States or any state thereof (including the District of Columbia), any taxes imposed by the United States by means of withholding at the source unless such withholding results from a change in applicable law, treaty or regulations or the interpretation or administration thereof (including, without limitation, any guideline or policy not having the force of law) by any authority charged with the administration thereof subsequent to the date such Lender becomes a Lender with respect to the Loans or portion thereof affected by such change and (iii) any tax imposed on or measured by the ~~Administrative Agent or any Lender as~~ overall net income (including a ~~result~~ franchise tax based on net income) of a ~~current~~ Lender or ~~former connection between~~ an office or branch thereof by the ~~Administrative Agent or such Lender and the jurisdiction~~ United States of ~~the Governmental Authority imposing such tax~~ America or any political subdivision or taxing authority thereof or therein (such tax or taxes, other than ~~any such connection arising solely from the Administrative Agent~~ excluded tax or ~~such Lender having executed~~taxes, ~~delivered~~ being herein referred to as "Tax" or ~~performed its obligations or received a payment under, or enforced, this Agreement~~"Taxes"). If the Borrower is --- ----- required by law to make any deduction or withholding of any Taxes from any payment due hereunder or under any of the Credit Documents, then the amount payable will be increased to such ~~non-excluded taxes~~amount which, ~~levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are~~ after deduction from such increased amount of all such Taxes required to be withheld ~~from~~ or deducted therefrom, will not be less than the amount due and payable hereunder had no such deduction or withholding been required. A certificate as to any additional amounts payable to a Lender under this Section 4.04 submitted to the Borrower by ------------ such Lender shall show in reasonable detail the amount payable and the calculations used to determine in good faith such amount and shall, absent manifest error, be final, conclusive and binding upon all parties hereto. (b) If the Borrower makes any payment hereunder or under any of the Credit Documents in respect of which it is required by law to make any deduction or withholding of any Taxes, it shall pay the full amount to be deducted or withheld to the relevant taxation or other authority within the time allowed for such payment under applicable law and shall deliver to the Lenders within 30 days after it has made such payment to the applicable authority a receipt issued by such authority evidencing the payment to such authority of all amounts so required to be deducted or withheld from such payment. (c) Without prejudice to the other provisions of Section 4.04, if any ------------ Lender, or the Administrative Agent on its behalf, is required by law to make any payment on account of Taxes on or in relation to any ~~Lender hereunder~~amount received or receivable hereunder or under any of the Credit Documents by such Lender, ~~the amounts so payable to~~ or the Administrative Agent on its behalf, or any liability for Tax in respect of any such payment is imposed, levied or assessed against any Lender ~~shall be increased to the extent necessary to yield to~~ or the Administrative Agent on its behalf, the Borrower will promptly, following receipt of the certificate described in the immediately following sentence, indemnify such person against such Tax payment or liability, together with any interest, penalties and expenses (including reasonable counsel fees and expenses) payable or incurred in connection therewith, including any tax of any Lender arising by virtue of payments under this Section 4.04(c), computed in a --------------- manner consistent with this Section 4.04(c). A certificate prepared in good --------------- faith as to the amount of such payment by such Lender, or the Administrative Agent on its behalf, absent manifest error, shall be final, conclusive and binding upon all parties hereto for all purposes. (d) Each Lender that is not a United States person (~~after payment~~ as such term is defined in Section 7701(a)(30) of ~~all Non-Excluded Taxes~~the Code) ~~interest~~ agrees to deliver to the Borrower and the Administrative Agent on or ~~any such other amounts payable hereunder at~~ prior to the ~~rates~~ Restatement Effective Date, or in the ~~amounts specified~~ case of a Lender that is an Assignee of an interest under this Agreement pursuant to Section 1.13 or 12.04 (unless the respective Lender was already a ------------ ----- Lender hereunder immediately prior to such assignment), on the date of such assignment to such Lender, (i) two accurate and complete original signed copies of IRS Form ▇-▇▇▇▇, ▇-▇▇▇▇ or W-8IMY (or successor or other applicable forms prescribed by the IRS) certifying to such Lender's entitlement to a complete exemption from or reduced rate of United States withholding tax on interest payments to be made under this Agreement and under any Note, or (ii) if the Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver the applicable form pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit D (any such certificate, a --------- "Section 4.04(d)(ii) Certificate") and (y) two accurate and complete original -------------------------------- signed copies of IRS Form W-8 (or successor form) certifying to such Lender's entitlement to a complete exemption from United States withholding tax on payments of interest to be made under this ~~Agreement~~Agreement and under any Note; provided, however, that ~~the US Borrower~~ no Lender shall ~~not~~ be required to ~~increase~~ deliver a an IRS Form W- -------- ------- 8BEN, W-8ECI, W-8IMY, or Section 4.04(d)(ii) Certificate under this Section ------- 4.04(d) to the extent that the delivery of such form is not authorized by law; ------- provided further, however, that in the event that a Lender provides the Borrower -------- ------- ------- or the Administrative Agent with an IRS Form W-8IMY (or substitute form) indicating that it is a "flow through" entity, as defined in Treasury Regulations promulgated under Section 1441 of the Code, or otherwise, not a beneficial owner of interest payments under this Agreement and under any Note, such Lender agrees, on or prior to the Restatement Effective Date, or the date of assignment to such Lender, as applicable, to take any actions necessary, and to deliver to the Borrower and the Administrative Agent all forms necessary, to establish such Lender's entitlement to a complete exemption from, or a reduction in, United States withholding tax on payments of interest to be made under this Agreement and under any Note, including causing its partners, members, beneficiaries, beneficial owners, and their beneficial owners, if any, to take any actions and deliver any forms necessary to establish such exemption. Notwithstanding the foregoing, (i) a fiscally transparent entity may provide an IRS Form W-8BEN to claim a treaty exemption or rate reduction to the extent that such entity is receiving interest and is not treated as fiscally transparent by its own jurisdiction, provided the satisfaction of such conditions entitles the Lender to an exemption or reduction from withholding at the time such Lender becomes a party to this Agreement and (ii) a withholding foreign partnership, withholding foreign trust, and qualified intermediary shall only provide such information as is required by Treasury Regulations promulgated under Code Section 1441. For purposes of this Agreement, the term "Forms" shall include any attachments for to IRS Forms W-8 IMY required to be filed by the Lender. In addition, each Lender agrees that from time to time after the Restatement Effective 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 the Borrower and the Administrative Agent two new accurate and complete original signed copies of an IRS Form W-8BEN, W-8ECI, or W-8IMY and a Section 4.04(d)(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 its partners, members, beneficiaries, or beneficial owners) to a continued exemption from or reduction in United States withholding Tax on interest 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 ~~amounts payable~~ form or certificate; provided, -------- however, that no Lender shall be required to deliver an IRS Form ▇▇-▇▇▇, ▇-▇▇▇▇, ------- or W-8IMY under this Section 4.04(d) to the extent that the delivery of such --------------- form is not authorized by law; provided, further, however, that any Lender which -------- ------- ------- does not deliver the applicable form pursuant to Section 4.04(d) shall be --------------- entitled to additional payment pursuant to Section 4.04(a) or indemnification --------------- under Section 4.04(c) only if and to the extent (i) such failure results from a --------------- change in law or (ii) the Tax to which such additional payment or indemnification relates would have been imposed regardless of whether such Lender provided such forms. Notwithstanding anything to the contrary contained in Section 4.04, any Lender that has not provided to the Borrower the IRS Forms ------------ required to be provided to the Borrower pursuant to this Section 4.04(d) shall --------------- not be entitled to any payment of additional amounts pursuant to Section 4.04(a) --------------- or indemnification under Section 4.04(c) with respect to any deduction or --------------- withholding which would not have been required if such Lender had provided such forms. (e) Each Lender that is ~~not~~ incorporated or organized under the laws of the United States of America or a state thereof ~~(a “Non-U.S. Lender”) if such Lender fails to comply with the requirements~~ shall provide two properly completed and duly executed copies of ~~paragraph (b) of this Section 5.4. Whenever~~ IRS Form W-9, or any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (successor or other ~~evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof~~applicable form. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, Each Lender shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) Each Non-U.S. Lender shall: (i) deliver to the US Borrower and the Administrative Agent ~~two copies of either~~ (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing provided that such ~~Non-U.S.~~ Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related remains lawfully able to ~~the US Borrower (within the meaning of Section 864(d)(4) of the Code)~~do so), ~~or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI~~two further duly executed forms and statements, ~~in each case~~ properly completed ~~and duly executed by such Non-U.S. Lender claiming complete exemption from~~in all material respects, at or ~~reduced rate of, U.S. Federal withholding tax on payments by~~ before the ~~US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of~~ time any such form or ~~certification~~ statement expires or becomes obsolete, or otherwise as reasonably requested by the Borrower. Each Lender shall promptly notify the Borrower at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Borrower (or any ~~applicable successor form) on or before the date that any such~~ other form or certification ~~expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered~~ adopted by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower taxing authorities for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4purpose). (f) Each Lender ~~represents and~~ agrees that, on as promptly as practicable after it becomes aware of the ~~Funding Date and at all times during~~ occurrence of any event or the ~~term~~ existence of ~~this Agreement~~any condition that would cause the Borrower to make a payment in respect of any Taxes to such Lender pursuant to Section ------- 4.04(a) or a payment in indemnification for any Taxes pursuant to Section ------- ------- 4.04(c), it ~~is not and~~ will ~~not be a conduit entity participating in a conduit financing arrangement~~ use reasonable efforts to make, fund or maintain the Loan (~~as defined in Section 7701(1~~or ------- portion thereof) of ~~the Code and the regulations thereunder)~~ such Lender with respect to which the ~~Borrowings hereunder unless~~ aforementioned payment is or would be made through another lending office of such Lender or take any other action reasonably requested by the US Borrower ~~has consented~~ if as a result thereof the additional amounts which would otherwise be required to be paid by such ~~arrangement prior thereto.~~the Borrower in respect of such Loans (or portions thereof) or participation in Letters of Credit pursuant to Section 4.04(a) or Section 4.04(c) would be --------------- --------------- materially reduced, and if, as determined by such Lender, in its reasonable discretion, the making, funding or maintaining of such Loans or participation in Letters of Credit (or portions thereof) through such other lending office or taking of such other action would not otherwise materially adversely affect such Loans or such Lender. The Borrower agrees to pay all reasonable expenses incurred by any Lender in utilizing another lending office of such Lender or taking of such other action pursuant to this Section 4.04(f). ---------------

Appears in 1 contract

Sources: Credit Agreement (Geo Specialty Chemicals Inc)

Net Payments. (a) All payments made by ~~the US~~ Borrower ~~and the UK Borrower~~ hereunder or under ~~this Agreement~~ any Loan Document shall be made without setoff, counterclaim, or other defense. All payments hereunder and under any Loan Document (including, without limitation, any payment of principal, interest, or fees) to, or for the benefit, of any Person shall be made by Borrower free and clear ~~of,~~ of and without deduction or withholding ~~for~~ for, or on account of, any ~~current~~ tax, duty, levy, impost, deduction, charge, withholding, or ~~future income~~assessment now or hereinafter imposed by any Governmental Authority. (b) If the Borrower makes any payment hereunder or under any Loan Document in respect of which it is required by law to deduct or withhold any Taxes, ~~stamp~~ Borrower shall increase the payment hereunder or ~~other~~ under any such Loan Document such that after the reduction for the amount of Taxes withheld (and any taxes withheld or imposed with respect to the additional payments required under this Section 4.7(b)) the amount paid to the Lender or Administrative Agent equals the amount that was payable hereunder or under any such Loan Document without regard to this Section 4.7(b). To the extent Borrower withholds any taxes, duties, levies, imposts, ~~duties~~deductions, charges, ~~fees, deductions or~~ withholdings, ~~now~~ or ~~hereafter imposed~~assessments on payments hereunder or under any Loan Document, ~~levied~~Borrower shall pay the full amount deducted to the relevant Governmental Authority within the time allowed for payment under applicable law and shall deliver to the Administrative Agent within 30 days after it has made payment to such authority a receipt issued by such authority (or other evidence satisfactory to the Administrative Agent) evidencing the payment of all amounts so required to be deducted or withheld from such payment. (c) If any Lender or Administrative Agent is required by law to make any payments of any Taxes on or in relation to any amounts received or receivable hereunder or under any other Loan Document, ~~collected~~or any Tax is assessed against a Lender or Administrative Agent with respect to amounts received or receivable hereunder or under any other Loan Document, ~~withheld or assessed by any Governmental Authority, excluding~~ Borrower will indemnify such person against (i) ~~net income taxes~~ such Tax (and ~~franchise taxes (imposed in lieu of net income taxes~~any reasonable counsel fees and expenses associated with such Tax) ~~imposed on the Administrative Agent or any Lender~~ and (ii) any taxes imposed ~~on the Administrative Agent or any Lender~~ as a result of ~~a current or former connection between~~ the ~~Administrative Agent or such Lender and the jurisdiction~~ receipt of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment ~~under, or enforced,~~ under this ~~Agreement~~Section 4.7(c). ~~If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are required to be withheld from any amounts payable~~ A certificate prepared in good faith as to the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the Administrative Agent for its own account or for the account amount of such ~~Lender~~payment by Lender or Administrative Agent, ~~as the case may be~~showing calculations thereof in reasonable detail, ~~a certified copy of an original official receipt (or other evidence acceptable to such Lender~~shall, ~~acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition~~absent manifest error, ~~if the US Borrower or the UK Borrower~~be final, ~~as the case may be~~conclusive, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and binding on all ~~other amounts payable hereunder~~parties. ~~(b) Each Non-U.S. Lender shall:~~ (i) To the extent permitted by applicable law, each Lender that is a Non-U.S. Participant shall deliver to ~~the US~~ Borrower and ~~the~~ Administrative Agent ~~two copies of either~~ on or prior to the Initial Borrowing Date (x) or in the case of a Lender that is an Assignee, on the date of such assignment to such Lender) two accurate and complete original signed copies of IRS Form W-8BEN, W-8ECI, or W-8IMY (or any successor or other applicable form prescribed by the IRS) certifying to such Lender's entitlement to a complete exemption from, or a reduced rate in, United States withholding tax on interest payments to be made under this Agreement or any Note. If a Lender that is a Non-U.S. ~~Lender~~ Participant is claiming a complete exemption from ~~U.S. Federal~~ withholding ~~tax under Section 871(h) or 881(c) of the Code with respect~~ on interest pursuant to ~~payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of~~ Section 881(c) of the Code, the Lender shall deliver (along with two accurate and complete original signed copies of IRS Form W-8BEN) a certificate substantially in the form of Exhibit 4.7(d)(i) (any such certificate, a "Section 4.7(d)(i) Certificate"). In addition, each Lender that is a Non-U.S. Participant agrees that from time to time after the Initial Borrowing Date, (or in the case of a Lender that is an Assignee, after the date of the assignment to such Lender), when a lapse in time (or change in circumstances occurs) renders the prior certificates hereunder obsolete or inaccurate in any material respect, such Lender shall, to the extent permitted under applicable law, deliver to the Borrower and Administrative Agent two new and accurate and complete original signed copies of an IRS Form W-8BEN, W-8ECI, or W-8IMY (or any successor or other applicable forms prescribed by the IRS), and if applicable, a new Section 4.7(d)(i) Certificate, to confirm or establish the entitlement to such Lender or Administrative Agent to an exemption from, or reduction in, United States withholding tax on interest payments to be made under this Agreement or any Note. (ii) Each Lender that is not a 10Non-~~percent shareholder~~ U.S. Participant (~~within the meaning of Section 871(h)(3)(B~~other than any such Lender which is taxed as a corporation for U.S. federal income tax purposes) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case shall provide two properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of ~~any such form or certification~~ IRS Form W-9 (or any successor or other applicable ~~successor~~ form) ~~on or before the date that any such form or certification expires or becomes obsolete~~ to Borrower and ~~after the occurrence of any event requiring a change in the most recent form previously delivered by it~~ Administrative Agent certifying to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender or Administrative Agent is exempt from ~~duly completing and delivering any such~~ United States backup withholding tax. To the extent that a form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required provided pursuant to this Section ~~5.4(b); provided, that~~ 4.7(d)(ii) is rendered obsolete or inaccurate in ~~the case~~ any material respects as result of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, change in ~~respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts~~ circumstances with respect to ~~U.S. Federal withholding tax existed on~~ the ~~date such Non-U.S. Lender became a party to this Agreement (or, in the case~~ status of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative ~~Agent~~Agent shall, as to the ~~case may be~~extent permitted by applicable law, ~~is attributable~~ deliver to Borrower and Administrative Agent revised forms necessary to confirm or establish the entitlement to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4Lender's exemption from United States backup withholding tax. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Credit Agreement (Huntsman Advanced Materials (UK) LTD)

Net Payments. (a) All payments made by the ~~US Borrower and the UK~~ Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing ~~such~~ SUCH tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (~~“Non~~"NON-~~Excluded Taxes”~~EXCLUDED TAXES") are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any ~~such~~ SUCH other amounts payable hereunder at the rates or in the amounts specified in this Agreement; ~~provided~~PROVIDED, ~~however~~HOWEVER, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof ~~(a “Non-U.S. Lender”)~~ if ~~such~~ SUCH Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder5. (b) Each Non-U.S. Lender shall: (i) deliver to the US Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Credit Agreement (Wki Holding Co Inc)

Net Payments. (a) ~~All~~ Except as otherwise required by law, all payments made by the US Borrower ~~and~~ to any Lender or the ~~UK Borrower~~ Administrative Agent under this Agreement and/or any Loan Document shall be made free and clear of, and without ~~deduction or withholding~~ reduction for or on account of, any ~~current~~ present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding ~~(i) net~~ income ~~taxes~~ and franchise taxes (imposed by any jurisdiction in ~~lieu of net income taxes) imposed on the Administrative Agent~~ which such Lender's principal or ~~any Lender and (ii) any taxes imposed on the Administrative Agent~~ lending office is located or ~~any Lender as a result of a current or former connection between the Administrative Agent or~~ in which such Lender ~~and the jurisdiction of the Governmental Authority imposing such tax~~ is engaged in a trade or business or any political subdivision or taxing authority thereof or therein (~~other than any~~ such ~~connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement~~non-excluded taxes being called "Taxes"). If any ~~such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”)~~ Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender ~~hereunder~~under this Agreement and/or any Loan Document, the Borrower shall timely remit such taxes to the Governmental Authority imposing the same and the amounts so payable to ~~the Administrative Agent or~~ such Lender shall be increased to the extent necessary to yield to ~~the Administrative Agent or~~ such Lender (after payment of all ~~Non-Excluded~~ Taxes) interest or any such other amounts payable ~~hereunder~~ at the rates or in the amounts specified in this ~~Agreement; provided, however, that the US Borrower shall not be required to increase~~ Agreement and/or any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4Loan Document. Whenever any ~~Non-Excluded Taxes are~~ Tax is payable by the ~~US Borrower or the UK~~ Borrower~~, as the case may be~~, as promptly as possible ~~thereafter such US Borrower or UK~~ thereafter, the Borrower shall send to the Administrative ~~Agent~~ Agent, for its own account or ~~for~~ the account of such Lender, as the case may be, a certified copy of an original official receipt ~~(or other evidence acceptable to such Lender, acting reasonably)~~ received by ~~such US Borrower or~~ the UK Borrower showing payment thereof. ~~In addition~~Without prejudice to the foregoing, if ~~the US Borrower~~ any Lender or the ~~UK Borrower~~Administrative Agent is required to make any payment on account of Taxes, the Borrower will, upon notification by the Lender or the Administrative Agent, promptly indemnify such Person against such Taxes. For purposes of this Section 2.12, the term "Taxes" includes interest, penalties and expenses payable or incurred in connection therewith. A certificate as to any additional amounts (showing in reasonable detail the calculation thereof, or, alternatively, including a copy of the notice from the taxing jurisdiction notifying the Lender of its liability for Taxes) payable to a Lender under this Section 2.12 submitted to the Borrower by such Lender shall, absent manifest error, be final, conclusive and binding for all purposes upon all parties hereto. The Lender shall submit such certification or otherwise provide written notice to the Borrower within a reasonable period of time after becoming aware of any Taxes for which it is entitled to payments of additional amounts under this Section 2.12. (b) Prior to the date of initial funding by each Lender that is not incorporated under the laws of the United States of America or a state thereof, such Lender will deliver to the Borrower and the Administrative Agent two duly completed copies of United States Internal Revenue Service Form 1001 or 4224 or successor applicable form, as the case may be, ~~fails~~ certifying in each case that such Lender is entitled to ~~pay~~ receive payments under this Agreement and/or any ~~Non-Excluded Taxes when due~~ Loan Document payable to it, without deduction or withholding of any United States federal income taxes. Each Lender that delivers to the ~~appropriate taxing authority or fails to remit to~~ Borrower and the Administrative Agent a Form 1001 or 4224 pursuant to the ~~required receipts or other required documentary evidence~~preceding sentence, ~~the US Borrower or the UK Borrower~~and each assignee, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) Each Non-U.S. Lender shall: (i) undertakes to deliver to the US Borrower and the Administrative Agent two copies of ~~either (x) in~~ the said Form 1001 or 4224, or successor applicable forms, or other manner of certification, as the case ~~of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”~~may be, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form ~~or certification~~ previously delivered expires or becomes obsolete ~~and~~ or after the occurrence of any event requiring a change in the most recent form previously delivered by it to the ~~US Borrower; and (iii) obtain~~ Borrower and the Administrative Agent, and such extensions ~~of time for filing and complete such forms~~ or ~~certifications~~ renewals thereof as may reasonably be requested by the ~~US Borrower~~ Borrower, certifying in the case of a Form 1001 or ~~the Administrative Agent;~~ 4224 that such Lender is entitled to receive payments under this Agreement and/or any other Loan Document without deduction or withholding of any United States federal income taxes, unless in any such ~~case~~ cases an event (including without limitation any change in treaty, law or ~~regulation~~ regulation) has occurred subsequent to the Closing Date and prior to the date on which any such delivery would otherwise be required ~~that~~ which renders ~~any~~ all such ~~form~~ forms inapplicable or which would prevent such Lender from duly completing and delivering any such form with respect to ~~it and~~ it. Each such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required which is not able to provide ~~all~~ the ~~forms and statements required pursuant to~~ applicable form shall advise the Borrower that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. Notwithstanding any other provision of this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary2.12, no Lender ~~or Participant~~ shall be required to deliver any form ~~or certification~~ pursuant to this Section 2.12 that it such Lender is not legally able to deliver. (c) The US Borrower shall not be required to ~~indemnify any Non-U.S. Lender, or to~~ pay any ~~additional amounts~~ increased amount on account of Taxes pursuant to this Section 2.12 to any ~~Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph (a) above~~ Lender to the extent that ~~(i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date~~ such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts Taxes would not have ~~arisen but for~~ been payable if such Lender had furnished a form required by Section 2.12(b), unless such failure ~~by such Non U.S. Lender or Non U.S. Participant~~ results from any event subsequent to ~~comply with~~ the ~~provisions of paragraph~~ date hereof (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of including without limitation any change in treaty, law or ~~regulation having effect after the date such representations or certifications were made. (d~~regulation) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change specified in the ~~Requirement~~ second sentence of ~~Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date~~Section 2.12(b). (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.

Appears in 1 contract

Sources: Loan Agreement (CSS Industries Inc)

Net Payments. (a) All payments made by the ~~US Borrower~~ Borrowers and the ~~UK Borrower~~ other Credit Parties hereunder and under ~~this Agreement shall~~ any other Credit Document will be made without setoff, counterclaim or other defense. Except as provided in Section 5.04(b), and except as required by applicable law, all such payments will be made free and clear of, and without deduction or withholding ~~for or on account of~~for, any ~~current~~ present or future ~~income, stamp or other~~ taxes, levies, imposts, duties, ~~charges,~~ fees, ~~deductions~~ assessments or ~~withholdings,~~ other charges of whatever nature now or hereafter ~~imposed, levied, collected, withheld or assessed~~ imposed by any ~~Governmental Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent~~ jurisdiction or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding (i) any tax or withholding on account of tax imposed on or measured by the net income or net profits of a Lender or the Administrative Agent (as applicable) and any franchise taxes and branch profits taxes imposed pursuant to the laws of the jurisdiction in which it is resident or organized or the jurisdiction in which the principal office or applicable lending office of such Lender or the Administrative Agent (as applicable) is located or any subdivision thereof or therein, or any tax imposed as a result of a present or former connection between such Lender or the Administrative Agent (as applicable) and the jurisdiction imposing such tax (other than ~~any~~ connections arising only from such ~~connection arising solely from~~ Lender or the Administrative Agent ~~or such Lender~~ (as applicable) having executed, ~~delivered or~~ delivered, become a party to, performed its obligations under, received payments under, received or ~~received~~ perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Loan or Credit Document), (ii) in the case of a Lender, any U.S. Federal withholding tax that is imposed on amounts payable to such Lender at the time such 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 such U.S. Borrower with respect to such withholding tax pursuant to Section 5.04(a), (iii) Taxes attributable to a Lender’s failure to comply with Section 5.04(e), (iv) any United States federal withholding tax imposed under FATCA, (v) any tax imposed under the Income Tax Act (Canada) on any payment hereunder by a Credit Party to a Lender or the Administrative Agent (as applicable) by reason of such Credit Party not dealing at arm’s length for purposes of the Income Tax Act (Canada) with the Lender or the Administrative Agent (as applicable) at the time of such payment, (vi) any tax imposed under the Income Tax Act (Canada) on any payment hereunder by a Credit Party to a Lender or the Administrative Agent (as applicable) by reason of such Lender or the Administrative Agent (as applicable) being a “specified non-resident shareholder” (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Company or applicable Credit Party at any time during the year when such payment is made or by reason of such Lender or the Administrative Agent (as applicable) not dealing at arm’s length for purpose of the Income Tax Act (Canada) with a “specified shareholder” (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Company or applicable Credit Party at any time during the year in which such payment is made, and (vii) any withholding tax under the Income Tax Act (Canada) applicable to a payment ~~under~~by a Canadian Borrower in respect of a debt or other Obligation to pay an amount to a person with whom such Credit Party is not dealing at arm’s length for purposes of the Income Tax Act (Canada) (subparagraphs (i) through (vii) together, “Excluded Taxes”)) and all interest, penalties or ~~enforced, this Agreement). If any~~ similar liabilities with respect to such non-excluded taxes, levies, imposts, duties, ~~charges~~fees, assessments or other charges (all such non-excluded taxes, levies, imposts, duties, fees, ~~deductions~~ assessments or ~~withholdings (~~other charges being referred -88- to collectively as “~~Non-Excluded~~ Taxes”). If any Taxes are so levied or imposed, the respective Borrower (and any other Credit Party making the respective payment or which has guaranteed the obligations of the relevant Borrower) ~~are required~~ agrees to pay the full amount of such Taxes, and such additional amounts as may be ~~withheld from~~ necessary so that every payment of all amounts due under this Agreement or under any ~~amounts payable~~ other Credit 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 other Credit Documents. The respective Borrower (or other Credit Party) will, upon the Administrative Agent’s written request, furnish to the Administrative ~~Agent~~ Agent, 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 ~~any Lender hereunder, the amounts so payable~~ other Credit Party) or other evidence of payment reasonably satisfactory to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereof. In addition, if the US Borrower or the UK Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the US Borrower or the UK Borrower, as the case may be, shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunderAgent. (b) ~~Each Non-~~Subject to Section 14.07, the U.S. ~~Lender shall:~~ Borrowers (ijointly and severally) ~~deliver~~ or the Canadian Borrowers (jointly and severally), as applicable, agree (and the applicable Subsidiary Guarantors agree) to timely pay to the ~~US Borrower and~~ relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent ~~two copies of either (x) in~~ timely reimburse it for the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate payment of, ~~U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) deliver to the US Borrower and the Administrative Agent two further copies of~~ any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliverOther Taxes. (c) ~~The US Borrower shall not be required~~ Subject to ~~indemnify any Non-~~Section 14.07, the U.S. ~~Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to paragraph~~ Borrowers (ajointly and severally) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the ~~UK Borrower,~~ Canadian Borrowers (iijointly and severally) the obligation to pay such additional amounts would not have arisen but for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agentshall, as applicable, ~~shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or~~ agree (and the ~~Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant~~ applicable Subsidiary Guarantors agree) to ~~this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the~~ indemnify each Lender or the Administrative Agent, as the case may be, within 10 days after demand therefor, for the full amount of any Taxes (including Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Lender or required to be withheld or deducted from a payment to such Lender and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Company by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall ~~reimburse~~ be conclusive absent manifest error; provided that the Borrowers shall not be required to compensate any Lender pursuant to this Section 5.04(c) for any such US Taxes incurred more than 180 days prior to the date that such Lender notifies the Company of the change giving rise to such Taxes and of such Lender’s intention to claim compensation therefor; provided, further, that, if the change giving rise to such Taxes is retroactive, then the 180 day period referred to above shall be extended to include the period of retroactive effect thereof. (d) Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Lender (but only to the extent that any Credit Party has not already indemnified the Administrative Agent for such Taxes and without limiting the obligation of Credit Parties, subject to Section 14.07, to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 13.04(e) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this clause (d). (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Company or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Company or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Company or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Company or the Administrative Agent as will enable the Company or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 5.04(e)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable 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. (ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Borrower, (A) any Lender that is a U.S. Person shall deliver to the Company and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), executed originals of Internal Revenue Service Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), whichever of the following is applicable: (i) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed originals of Internal Revenue Service Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, Internal Revenue Service Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; (ii) executed originals of Internal Revenue Service Form W-8ECI; (iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit D-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of Internal Revenue Service Form W-8BEN; or (iv) to the extent a Foreign Lender is not the beneficial owner, executed originals of Internal Revenue Service Form W-8IMY, accompanied by Internal Revenue Service Form W-8ECI, Internal Revenue Service Form W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-2 or Exhibit D-3, Internal Revenue Service Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-4 on behalf of each such direct and indirect partner; (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Company or the Administrative Agent to determine the withholding or deduction required to be made; and (D) if a payment made to a Lender under any Credit 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 the Company and the Administrative Agent at the time or times prescribed by law such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) as may be necessary for the Company 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. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. 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 the Company and the Administrative Agent in writing of its legal inability to do so. (f) 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 a Borrower or UK with respect to which a Borrower ~~for~~ has paid additional amounts pursuant to Section 5.04(a), it shall pay to such Borrower an amount equal to such refund (~~together~~ but only to the extent of indemnity payments made, or additional amounts paid, by such Borrower under this Section with ~~any interest received thereon) as~~ respect to the ~~Lender~~ Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or ~~Administrative Agent~~such Lender, as the case may be, ~~determines~~ and without interest (other than any interest paid by the relevant jurisdiction or any political subdivision or taxing authority thereof with respect to be such refund), provided that the ~~proportion~~ U.S. Borrowers (on a joint and several basis) and the Canadian Borrowers (on a joint and several basis), as the case may be, upon the request of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent or such Lender, agree to repay the amount paid over to any such 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; provided, further, that no Borrower shall be ~~obliged~~ required to ~~disclose~~ repay the Administrative Agent or such Lender an amount in excess of the amount paid over by such party to any ~~information regarding~~ such Borrower pursuant to this Section 5.04(f). This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax ~~affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph~~ returns (e) or any other ~~provision of this Section 5.4. (f~~information relating to its taxes that it deems confidential) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the ~~Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.~~Company, any other Borrower, any o

Appears in 1 contract

Sources: Abl Credit Agreement (Ciena Corp)

Net Payments. (a) All payments made by ~~the US Borrower and the UK Borrower~~ or on account of any Credit Party under ~~this Agreement~~ any Credit Document shall be made free and clear of, and without deduction or withholding ~~for or on account of~~for, any ~~current or future income~~Taxes, ~~stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed~~ except as required by any Governmental Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement)applicable law. If any ~~such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”)~~ Taxes are required to be withheld or deducted from ~~any amounts payable~~ such payments, then the Credit Parties jointly and severally agree that (i) to the ~~Administrative Agent~~ extent such deduction or ~~any Lender hereunder~~withholding is on account of an Indemnified Tax or Other Tax, the ~~amounts so~~ sum payable ~~to the Administrative Agent or such Lender~~ shall be increased as necessary so that after making all required deductions or withholding (including deduction or withholdings applicable to additional sums payable under this Section 5.04), the Lender receives an amount equal to the ~~extent necessary to yield~~ sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the ~~Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or~~ relevant Governmental Authority in the amounts specified in this Agreement; provided, however, that the US Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply accordance with the requirements of paragraph (b) of this Section 5.4. Whenever any Non-Excluded Taxes are payable by the US Borrower or the UK Borrower, as the case may be, as promptly as possible thereafter such US Borrower or UK Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such US Borrower or the UK Borrower showing payment thereofapplicable law. In addition, if the ~~US Borrower or the UK Borrower, as the case may be, fails to~~ Credit Parties shall timely pay any ~~Non-Excluded~~ Other Taxes ~~when due~~ to the ~~appropriate taxing authority or fails to remit~~ relevant Governmental Authority in accordance with applicable law. The Credit Parties will furnish to the ~~Administrative Agent~~ Agents within 45 days after the date the payment by any of them of any Indemnified Taxes or Other Taxes is due pursuant to applicable law certified copies of tax receipts evidencing such payment by the applicable Credit Party. The Credit Parties jointly and severally agree to indemnify and hold harmless the Agents and each Lender, and reimburse the Agents and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other Taxes (including any Indemnified Taxes or Other Taxes imposed on amounts payable under this Section 5.04) payable or paid by the Agents or such Lender or required ~~receipts~~ to be withheld or ~~other required documentary evidence~~deducted from a payment to the Agents or such Lender, and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the ~~US Borrower~~ relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the ~~UK Borrower, as~~ Agents or a Lender (or by the ~~case may be~~Agents on behalf of a Lender), shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunderbe conclusive absent manifest error. (b) ~~Each Non-U.S.~~ Any Lender ~~shall: (i)~~ that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the US Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduce rate of, withholding Tax. In addition, each Lender shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such other documentation 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 such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 5.04(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrower or the Administrative Agent) or promptly notify the Borrower and the Administrative Agent in writing of its inability to do so. (c) Without limiting the generality of the foregoing: (x) Each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the Borrower and the Administrative Agent on or prior to the Closing Date or, in the case of a Lender that is a Lender to the Borrower and that is an assignee or transferee of an interest under this Agreement pursuant to Section 2.13 or 13.04(b) (unless the relevant Lender was already a Lender hereunder immediately prior to such assignment or transfer), on the date of such assignment or transfer to such Lender, (i) two accurate and complete signed copies of ~~either~~ Internal Revenue Service Form W-8BEN (xor successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or Form W-8ECI (or successor form), or (ii) in the case of ~~Non-U.S.~~ a Lender claiming exemption from U.S. ~~Federal~~ federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest,” a certificate substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or D-4 (any such certificate, a “U.S. Tax Compliance Certificate”~~, United States~~ ) and two accurate and complete signed copies of Internal Revenue Service Form W-8BEN (~~together~~ or successor form) certifying to such Lender’s entitlement as of such date to a complete exemption from U.S. withholding tax with respect to payments of interest to be made under this Agreement and under any Note, or (iii) to the extent a ~~certificate representing that such Non-U.S.~~ Lender is not the beneficial owner (for example, where the Lender is a ~~bank~~ partnership or a participating Lender), two accurate and complete signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, U.S. Tax Compliance Certificate, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 5.04(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption), the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such partner(s); or (iv) two accurate and complete signed copies of any other form prescribed by applicable U.S. federal income tax laws (including the Treasury regulations) as a basis for claiming a complete exemption from, or a reduction in, United States federal withholding Tax; (y) Each Lender that is a United States person, as defined in Section ~~881(c~~7701(a)(30) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the US Borrower and is not a controlled foreign corporation related to the US Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the US Borrower under this Agreement; (ii) shall deliver to the US Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the US Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the US Borrower or the Administrative Agent; unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the US Borrower and the Administrative Agent~~. Each~~ , at the times specified in Section 5.04(b), two accurate and complete signed copies of Internal Revenue Service Form W-9, or any successor form that such Person ~~that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required~~ is entitled to provide ~~all the forms and statements required pursuant to this Section 5.4(b); provided, that in the case of a Participant~~ at such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding anything to the contrary, no Lender or Participant shall be required to deliver any form or certification that it is not legally able to deliver. (c) The US Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lendertime, in ~~respect of U.S. Federal withholding tax pursuant~~ order to paragraph (a) above to the extent that (i) the obligation to withhold amounts with respect to U.S. Federal withholding tax existed on the date such Non-U.S. Lender became a party to this Agreement (or, in the case of a Participant that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Participant”), on the date such Non-U.S. Participant became a Participant hereunder); provided, however, that this clause (i) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this clause (i)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer, or (y) such assignment, participation or transfer had been requested by the US Borrower or the UK Borrower, (ii) the obligation to pay such additional amounts would not have arisen but qualify for a failure by such Non U.S. Lender or Non U.S. Participant to comply with the provisions of paragraph (b) above or (iii) any of the representations or certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at the time a payment hereunder is made, other than by reason of any change in treaty, law or regulation having effect after the date such representations or certifications were made. (d) Where a Lender is not, or has ceased to be, an Eligible Lender on the due date for payment of any sum under this Agreement, the increased amount due under Section 5.4(a) hereof shall be limited to the amount the UK Borrower would have had to pay if: (i) where that Lender had been a UK Lender before ceasing to be an Eligible Lender, the Lender had remained a UK Lender; (ii) where that Lender had been a Treaty Lender before ceasing to be an Eligible Lender, the Lender had remained a Treaty Lender and an appropriate direction had been given by the United Kingdom Inland Revenue authorizing the UK Borrower to make payment with deduction of tax at a reduced rate in accordance with the provisions of the relevant double taxation agreement; or (iii) where that Lender had not been a Eligible Lender, the Lender had been a UK Lender; this Section 5.4(d) shall not apply to the extent that the UK Borrower would have been required to make a deduction or withholding on account of tax regardless of whether such Lender is an Eligible Lender. This Section 5.4(d) shall not apply in circumstances where a Lender ceases to be an Eligible Lender due to a change in the Requirement of Law or double taxation treaty or in its application or interpretation, in each case taking effect after the Funding Date. (e) If the US Borrower or the UK Borrower determines in good faith that a reasonable basis exists for contesting any taxes for which indemnification has been demanded hereunder, the relevant Lender or the Administrative Agent, as applicable, shall cooperate with such US Borrower or UK Borrower in challenging such taxes at such US Borrower’s or UK Borrower’s expense if so requested by such US Borrower or UK Borrower. If any Lender or the Administrative Agent, as applicable, receives a refund of a tax for which a payment has been made by the US Borrower or the UK Borrower pursuant to this Agreement, which refund in the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such US Borrower or UK Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse such US Borrower or UK Borrower for such amount (together with any interest received thereon) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position than it would have been in if the payment had not been required. A Lender or Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its reasonable discretion that it would be adversely affected by making such a claim. Neither any Lender nor the Administrative Agent shall be obliged to disclose any information regarding its tax affairs or computations to the US Borrower or the UK Borrower in connection with this paragraph (e) or any other provision of this Section 5.4. (f) Each Lender represents and agrees that, on the Funding Date and at all times during the term of this Agreement, it is not and will not be a conduit entity participating in a conduit financing arrangement (as defined in Section 7701(1) of the Code and the regulations thereunder) with respect to the Borrowings hereunder unless the US Borrower has consented to such arrangement prior thereto.exemption from

Appears in 1 contract

Sources: Revolving Credit Agreement (OCI Partners LP)

Appears in 1 contract

Sources: Senior Secured Superpriority Debtor in Possession Term Loan Credit Agreement (Virgin Orbit Holdings, Inc.)

Common use of Net Payments Clause in Contracts