No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”). If any such Non-Excluded Taxes are imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document.
Appears in 5 contracts
Samples: Revolving Credit and Term Loan Agreement (Emmis Communications Corp), Revolving Credit and Term Loan Agreement (Emmis Communications Corp), Revolving Credit and Term Loan Agreement (Emmis Communications Corp)
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document. Each Lender claiming any additional amounts payable under this §5.2.2 agrees to use reasonable efforts (consistent with legal and regulatory restrictions) to execute and deliver all such documents and instruments as the Borrower shall reasonably request or to change the jurisdiction of its applicable lending office if the execution of such documents or the making of such a change would avoid the need for or substantially reduce the amount of additional amounts which would thereafter accrue and would not, in the sole and absolute determination of such Lender, be otherwise disadvantageous to such Lender, which determination by such Lender shall be conclusive. The Borrower shall not be liable for taxes paid by the Administrative Agent or any Lender that are based upon the Administrative Agent’s or such Lender’s net income or for any withholdings required to be made pursuant to applicable law that are credited against taxes based on the Administrative Agent’s or such Lender’s net income.
Appears in 4 contracts
Samples: Revolving Credit and Term Loan Agreement (CAI International, Inc.), Revolving Credit and Term Loan Agreement (CAI International, Inc.), Revolving Credit and Term Loan Agreement (CAI International, Inc.)
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (Aother than Excluded Taxes) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document.
Appears in 3 contracts
Samples: Revolving Credit and Term Loan Agreement (Quaker Fabric Corp /De/), Revolving Credit Agreement (Quaker Fabric Corp /De/), Term Loan Agreement (Quaker Fabric Corp /De/)
No Offset, etc. All payments by the Borrower Borrowers hereunder and under any of the other Loan Documents shall be made without setoff any condition, recoupment, setoff, defense or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) other than any such deductions or withholdings which the Borrowers are compelled by law to make on or with respect to, or measured by, the income and of the Administrative Agent, any Lender, any assignee or any participant, including without limitation, franchise taxes imposed on (or with respect to, or measured by) the , net income of such Person, in each case by any jurisdiction, subdivision thereof or profits of any Lender taxing or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions other Governmental Authority therein in which the Administrative Agent Agent, such Lender, such assignee or such Lender participant is located organized, has its principal place of business, maintains a lending office or any political subdivision thereofis otherwise subject to tax) and other deductions, or by the jurisdictions in withholdings which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the Borrower is Borrowers are compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower Borrowers with respect to any amount payable by it them hereunder or under any of the other Loan Documents, the Borrower Borrowers will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative such Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in U.S. Dollars (or if such amount is interest on a Canadian Loan denominated in Canadian Dollars, the U.S. Dollar Equivalent thereof) as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholdingBorrowers. The Borrower Borrowers will deliver promptly to the Administrative Agent certificates or other valid vouchers evidence reasonably acceptable to the Administrative Agent for all taxes or other charges deducted from or paid with respect to payments made by the Borrower Borrowers hereunder or under such other Loan Document.
Appears in 2 contracts
Samples: Credit Agreement (McCormick & Schmicks Seafood Restaurants Inc.), Revolving Credit Agreement (McCormick & Schmicks Seafood Restaurants Inc.)
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without condition or deduction for any recoupment, defense, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, other than (a) with respect to taxes based upon the Administrative Agent’s or any Lender’s net income, or (b) with respect to amounts owing to a Lender that (i) is not incorporated under the laws of the United States of America or a state thereof and (ii) has not delivered to the Administrative Agent the forms referred to in §4.3.3 hereof, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars or the applicable Alternative Currency as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Staples Inc), Revolving Credit Agreement (Staples Inc)
No Offset, etc. All payments by the Borrower Borrowers hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) unless the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the Borrower is Borrowers are compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower Borrowers with respect to any amount payable by it them hereunder or under any of the other Loan Documents, the Borrower applicable Domestic Borrowers will pay to the Administrative Agent, applicable Canadian Lender in the case of a payment by the Canadian Borrower or the Agent for the account of the applicable Domestic Lenders or the Agent (as the case may be) be)(in the Administrative Agentcase of a payment by a Domestic Borrower), on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in U.S. Dollars or Canadian Dollars, as applicable, as shall be necessary to enable the applicable Lenders or the Administrative Agent to receive the same net amount which the such Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholdingBorrowers. The Borrower Borrowers will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower Borrowers hereunder or under such other Loan Document.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Dave & Busters Inc), Revolving Credit and Term Loan Agreement (Dave & Busters Inc)
No Offset, etc. All (a) Subject to Section 5.2.3, all payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxestaxes (including interest, penalties and additions to tax), levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or the Administrative Agent (as the case may be) the Administrative Agent), on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation Non-Excluded Taxes been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document.
(b) In addition, the Borrower agrees to pay to the relevant Governmental Authority in accordance with applicable law any current or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies (including, without limitation, mortgage recording taxes, transfer taxes and similar fees) imposed by the United States or any taxing authority thereof or therein that arise from any payment made hereunder (“Other Taxes”).
(c) Subject to Section 5.2.3, the Borrower agrees to indemnify the Lenders and the Administrative Agent for the full amount of Non-Excluded Taxes (including additional amounts with respect thereto) and Other Taxes, and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto (other than amounts arising from the gross negligence or willful misconduct of the Lenders or the Administrative Agent, as the case may be), provided that the Lenders or the Administrative Agent, as the case may be, shall have provided the Borrower with evidence, reasonably satisfactory to the Borrower, of payment of Non-Excluded Taxes or Other Taxes, as the case may be.
(d) Any Lender or the Administrative Agent that becomes entitled to the payment of additional amounts pursuant to Section 5.2.2(a) or indemnification pursuant to Section 5.2.2(c), such Person shall use reasonable efforts (consistent with applicable law) to file any document reasonably requested by the Borrower or, with respect to a Lender, to change the jurisdiction of its applicable lending office if the making of such a filing or change of office, as the case may be, would avoid the need for or reduce the amount of any payment of such additional amounts that may thereafter accrue and would not, in the good faith determination of such Lender or the Administrative Agent, as applicable, be disadvantageous to it.
(e) If a Lender or the Administrative Agent receives any refund or credit with respect to taxes for which the Borrower has paid any additional amounts pursuant to Section 5.2.2(a), then such Lender or the Administrative Agent, as applicable, shall promptly pay to the Borrower the portion of the sum of such refund or credit and any interest received with respect thereto as it determines, in its reasonable, good faith judgment, will leave it, after such payment, in no better or worse financial position than it would have been absent the imposition of such taxes and the payment of such additional amounts pursuant to Section 5.2.2(a); provided, however, that (i) the Borrower agrees to promptly return any amount paid to the Borrower pursuant to this Section 5.2.2(e) upon notice from such Lender or the Administrative Agent, as applicable, that such refund or any portion thereof is required to be repaid to the relevant taxing authority, (ii) nothing in this Section 5.2.2
Appears in 2 contracts
Samples: Credit Agreement (SeaCube Container Leasing Ltd.), Credit Agreement (Seacastle Inc.)
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the unless a Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower Loan Parties will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document. Each Lender claiming any additional amounts payable under this §5.2.2 agrees to use reasonable efforts (consistent with legal and regulatory restrictions) to execute and deliver all such documents and instruments as the Borrower shall reasonably request or to change the jurisdiction of its applicable lending office if the execution of such documents or the making of such a change would avoid the need for or substantially reduce the amount of additional amounts which would thereafter accrue and would not, in the sole and absolute determination of such Lender, be otherwise disadvantageous to such Lender, which determination by such Lender shall be conclusive. The Borrower shall not be liable to the Administrative Agent or any Lender (such person a "Recipient") for (i) taxes that are based upon or measured by such Recipient's (or a branch’s (in the case of a branch of such Recipient)) net income or net profit (including franchise Taxes imposed in lieu of such Taxes) or for any withholdings required to be made pursuant to applicable law that are credited against taxes based on such Recipient's net income or net profit, (ii) taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such taxes other than connections arising from such Recipient having executed this Agreement and having enforced or enjoyed its rights and performed its obligations under this Credit Agreement or any of the other Loan Documents, (iii) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (A) such Lender acquires such interest in the Loan or Commitment or (B) such Lender changes its lending office, except in each case to the extent that, pursuant to this §5.2.2, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (iv) any U.S. federal withholding taxes imposed under FATCA and (v) taxes attributable to such Lender’s failure to provide the documentation required by Section 5.2.3.
Appears in 2 contracts
Samples: Revolving Credit Agreement (CAI International, Inc.), Revolving Credit Agreement (CAI International, Inc.)
No Offset, etc. All payments by the Borrower Borrowers hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) unless the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the Borrower is Borrowers are compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower Borrowers with respect to any amount payable by it Borrowers hereunder or under any of the other Loan Documents, the Borrower Borrowers will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars (or, with respect to any Loan or Letter of Credit denominated in an Alternative Currency, in such Alternative Currency) as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the BorrowerBorrowers; provided however provided, that the Borrower no such additional amounts shall not be required to increase payable in respect of (i) any such amounts payable to any taxes imposed on a Lender or (as the case may be) the Administrative Agent with respect to by reason of any such Non-Excluded Taxes that are attributable to connection between the Lender or (ias the case may be) such the Administrative Agent and the taxing jurisdiction other than entering into this Credit Agreement and receiving payments hereunder or (ii) any taxes imposed by reason of a Lender’s or (as the case may be) the Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholdingSection 5.2.3. The Borrower Borrowers will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower Borrowers hereunder or under such other Loan Document.
Appears in 2 contracts
Samples: Credit Agreement (Lionbridge Technologies Inc /De/), Credit Agreement (Lionbridge Technologies Inc /De/)
No Offset, etc. All payments by the Borrower Borrowers hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) other than any such deductions or withholdings which the Borrowers are compelled by law to make on or with respect to, or measured by, the income and of the Administrative Agent, any Lender, any assignee or any participant, including without limitation, franchise taxes imposed on (or with respect to, or measured by) the , net income of such Person, in each case by any jurisdiction, subdivision thereof or profits of any Lender taxing or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions other Governmental Authority therein in which the Administrative Agent Agent, such Lender, such assignee or such Lender participant is located organized, has its principal place of business, maintains a lending office or any political subdivision thereofis otherwise subject to tax) and other deductions, or by the jurisdictions in withholdings which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the Borrower is Borrowers are compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower Borrowers with respect to any amount payable by it them hereunder or under any of the other Loan Documents, the Borrower Borrowers will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholdingBorrowers. The Borrower Borrowers will deliver promptly to the Administrative Agent certificates or other valid vouchers evidence reasonably acceptable to the Administrative Agent for all taxes or other charges deducted from or paid with respect to payments made by the Borrower Borrowers hereunder or under such other Loan Document.
Appears in 2 contracts
Samples: Revolving Credit Agreement (McCormick & Schmick Holdings, L.L.C.), Revolving Credit Agreement (McCormick & Schmicks Seafood Restaurants Inc.)
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein with respect to such payments (but excluding (A) income and franchise taxes any tax imposed on (or measured by) by the net income income, net profits or profits net worth of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or and any franchise taxes imposed on any Lender is organized or the Agent in each case as a result of a present or former connection between such Lender or Agent and such jurisdiction or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent taxing authority thereof or such Lender is located therein (other than solely as a result of entering into this Credit Agreement or any political subdivision thereofof the other Loan Documents or performing any obligations, receiving payments or by enforcing any rights hereunder or thereunder) or as a result of any Lender or the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (Bnot being a U.S. Person) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers reasonably available to it for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Seacastle Inc.), Credit Agreement (Seacastle Inc.)
No Offset, etc. All payments by the Borrower any Loan Party hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereoftherein, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) or taxing or other authority in any branch profits taxes imposed by the United States of America jurisdiction from or through which such Loan Party effects any similar tax imposed by any other jurisdiction described in clause (A) above unlesspayments hereunder, in each case, the Borrower unless such Loan Party is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower any Loan Party with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower such Loan Party will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholdingLoan Party. The Borrower Each Loan Party will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower such Loan Party hereunder or under such other Loan Document. Each Lender claiming any additional amounts payable under this §5.2.2 agrees to use reasonable efforts (consistent with legal and regulatory restrictions) to execute and deliver all such documents and instruments as the Borrower shall reasonably request or to change the jurisdiction of such Lender’s applicable lending office if the execution of such documents or the making of such a change would avoid the need for or materially reduce the amount of additional amounts which would be payable hereunder and would not, in the reasonable determination of such Lender, be otherwise materially disadvantageous to such Lender. No Loan Party shall be liable under this §5.2.2 for or with respect to any taxes paid by the Administrative Agent or any Lender that are based upon the Administrative Agent’s or such Lender’s net income or for or with respect to any withholdings required to be made pursuant to applicable law that may be credited against taxes based on the Administrative Agent’s or such Lender’s net income.
Appears in 2 contracts
Samples: Term Loan Agreement (CAI International, Inc.), Term Loan Agreement (CAI International, Inc.)
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein with respect to such payments (but excluding (A) income and franchise taxes any tax imposed on (or measured by) by the net income income, net profits or profits net worth of any Lender or the Administrative Agent by the jurisdictions under the laws of which and any franchise taxes imposed on any Lender or the Administrative Agent in each case as a result of a present or any former connection between such Lender is organized or Agent and such jurisdiction or any political subdivision thereofor taxing authority thereof or therein (other than solely as a result of entering into this Credit Agreement or any of the other Loan Documents or performing any obligations, receiving payments or by the jurisdictions in which enforcing any rights hereunder or thereunder) or as a result of any Lender or the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (Bnot being a U.S. Person) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers reasonably available to it for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document. Notwithstanding the foregoing, the Borrower shall not be obligated to pay any additional amount pursuant to this Section 5.1.2 to any Lender or the Administrative Agent if such Lender or the Administrative Agent is not a U.S. Person and (a) is legally eligible but fails to comply with the requirements of Section 5.1.3 or (b) is not legally eligible to comply with the requirements of Section 5.1.3. If the Borrower is required to pay additional amounts to or for the account of any Lender pursuant to this Section 5.1.2, then such Lender will, at the request of the Borrower, change the jurisdiction of its applicable lending office if such change (i) would eliminate or reduce any such additional payment which may thereafter accrue and (ii) is, in such Lender’s sole good faith discretion, determined not to be disadvantageous or cause non-immaterial hardship to such Lender; provided that any out-of-pocket costs or expenses that are incurred in connection with such change shall be borne by the Borrower on behalf of such Lender. Each Lender and the Administrative Agent agrees that it will, to the extent not disadvantageous or causing non-immaterial hardship, (x) take all reasonable actions reasonably requested by the Borrower that are consistent with all legal and regulatory restrictions applicable to it to maintain all exemptions, if any, available to it from withholding taxes (whether available by treaty or existing administrative waiver) and (y) otherwise cooperate with the Borrower to minimize any amounts payable by the Borrower under this Section 5.1.2; provided, however, that in each case, all out-of-pocket costs of each Lender and the Administrative Agent relating to such action or cooperation requested by the Borrower shall be borne by the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (SeaCube Container Leasing Ltd.), Credit Agreement (SeaCube Container Leasing Ltd.)
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction or withholding for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein but excluding (A) income franchise taxes and franchise other taxes imposed on (or measured by) by any Lender’s net income, profits or receipts, in the net income case of each such exclusion as a result of a connection between such Lender and the relevant taxing jurisdiction other than solely by reason of such Lender having executed, delivered or profits of any Lender performed its obligations under, or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent received payment under, or enforced this Credit Agreement or any Lender is organized other Loan Document (not including by having a lending or any political subdivision thereofsimilar office in the relevant taxing jurisdiction such non-excluded item being called “Taxes”), or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document.
Appears in 2 contracts
Samples: Credit Agreement (Safety Insurance Group Inc), Revolving Credit Agreement (Safety Insurance Group Inc)
No Offset, etc. All (a) Subject to Section 5.2, all payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxestaxes (including interest, penalties and additions to tax), levies, imposts, duties, charges, fees, deductions, withholdings, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are imposed under applicable law upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or the Administrative Agent (as the case may be) in accordance with the Administrative Agentpriority of payments set forth in Section 3.2(a) or 3.2(b) hereof, on the date on which such amount is due and payable hereunder or under such other Loan Documentas applicable, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation Non-Excluded Taxes been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document.
(b) In addition, the Borrower agrees to pay to the relevant Governmental Authority in accordance with applicable law (or to reimburse the Administrative Agent or Lender for amounts paid by such Person), any current or future stamp or documentary taxes, excise tax, charges or similar levies (including, without limitation, mortgage recording taxes, transfer taxes and similar fees) imposed by the United States or any taxing authority thereof or therein that arise from any payment made hereunder (“Other Taxes”).
(c) Subject to Section 5.2, the Borrower agrees to indemnify the Lenders and the Administrative Agent for the full amount of Non-Excluded Taxes (including additional amounts with respect thereto) and Other Taxes paid by Lender or Administrative Agent, and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto (other than amounts arising from the gross negligence or willful misconduct of the Lenders or the Administrative Agent, as the case may be), provided that the Lenders or the Administrative Agent, as the case may be, shall have provided the Borrower with evidence, reasonably satisfactory to the Borrower, of payment of Non-Excluded Taxes or Other Taxes, as the case may be.
(d) Any Lender or the Administrative Agent that becomes entitled to the payment of additional amounts pursuant to Section 5.2.2(a) or indemnification pursuant to Section 5.2.2(c), shall use reasonable efforts (consistent with applicable law) to file any document reasonably requested by the Borrower or, with respect to a Lender, to change the jurisdiction of its applicable lending office if the making of such a filing or change of office, as the case may be, would avoid the need for or reduce the amount of any payment of such additional amounts that may thereafter accrue and would not, in the good faith determination of such Lender or the Administrative Agent, as applicable, be disadvantageous to it.
(e) If a Lender or the Administrative Agent receives any refund or credit with respect to taxes for which the Borrower has paid any additional amounts pursuant to Section 5.2.2(a), then such Lender or the Administrative Agent, as applicable, shall promptly pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made under this Section) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, however, that (i) the Borrower agrees to promptly return any amount paid to the Borrower pursuant to this Section 5.2.2(e) upon notice from such Lender or the Administrative Agent, as applicable, that such refund or any portion thereof is required to be repaid to the relevant taxing authority, (ii) nothing in this Section 5.2.2
Appears in 2 contracts
Samples: Credit Agreement (Textainer Group Holdings LTD), Credit Agreement (Textainer Group Holdings LTD)
No Offset, etc. All payments by the Borrower Borrowers hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) Taxes unless the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the applicable Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are imposed upon the Borrower with respect to any amount payable by it a Borrower hereunder or under any of the other Loan Documents, the applicable Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation Taxes been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholdingimposed. The Borrower Borrowers will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the either Borrower hereunder or under such other Loan Document. Each Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Bank, within ten (10) days after demand therefor, for the full amount of any Taxes imposed or asserted on or attributable to amounts payable under this Section paid by the Administrative Agent, such Lender or the Issuing Bank, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to a Borrower by a Lender or the Issuing Bank (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive absent manifest error.
Appears in 2 contracts
Samples: Senior Unsecured Revolving Credit Agreement (Barnes Group Inc), Revolving Credit Agreement (Barnes Group Inc)
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions, withholdings, restrictions or conditions of any nature now or hereafter imposed imposed, levied or levied collected, withheld or assessed by any governmental authority, agency or instrumentality excluding, in the case of the Administrative Agent and each Bank, net income and franchise taxes imposed on the Administrative Agent or such Bank by the jurisdiction under the laws of which such Administrative Agent or such Bank is organized or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders Banks or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders Banks or the Administrative Agent to receive the same net amount which the Lenders Banks or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent Agent, to the extent available, certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document, provided however that the foregoing obligation to pay such additional amounts shall not apply:
(i) to any payment to a Bank if such Bank is not, on the date hereof (or on the date it becomes a Bank under this Agreement) and on the date of any change in the lending office of such Bank identified after its execution, entitled by virtue of its status as a non-resident alien to submit either a Form 1001 (relating to such Bank and entitling it to a complete exemption from withholding on all interest to be received by it hereunder in respect of the Loans) or Form 4224 (relating to all interest to be received by such Bank hereunder in respect of Loans) of the U.S. Department of Treasury, or
(ii) to any item referred to in the preceding sentence that would not have been imposed but for the failure by such Bank to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections of such Bank with the United States if such compliance is required by statute or regulation of the United States as a precondition to relief or exemption from such item.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Bangor Hydro Electric Co)
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein (a “Governmental Taxing Authority”) (excluding (A) net income taxes and franchise taxes imposed on (or measured by) the in lieu of net income or profits of any Lender or taxes imposed on the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized Bank as a result of a present or any political subdivision thereof, or by former connection between the jurisdictions in which jurisdiction of the Administrative Governmental Taxing Authority imposing such tax and the Agent or such Lender is located or any political subdivision thereof, or by Bank (except a connection arising solely from the jurisdictions in which the Administrative Agent or such Lender is doing business Bank having executed, delivered or performed its obligations or received a payment under, or enforced, this Credit Agreement or any political subdivision thereof and (BRevolving Credit Note)) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders Banks or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders Banks or the Administrative Agent to receive the same net amount which the Lenders Banks or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document. In addition, to the extent any Bank receives a refund in respect of any taxes to which it has been indemnified by the Borrower pursuant to this §5.3.2 (and such Bank can determine, in its sole discretion and using any method which such Bank deems appropriate that all or any portion of such refund is allocable to any taxes paid or indemnified by the Borrower under the Credit Agreement), it shall promptly repay such refund to the Borrower (to the extent of amounts that have been paid by the Borrower under this §5.3.2 with respect to such refund) of such Bank and without interest; provided, however, that the Borrower, upon the request of such Bank, agrees to return such refund (plus penalties, interest or other charges) to such Bank in the event such Bank is required to repay such refund for any reason whatsoever. Nothing contained in this §5.3.2 shall (a) entitle the Borrower to inspect or review any books or records of any Bank or the Agent; (b) require any Bank or the Agent to disclose any information concerning its tax position or any other information determined by any Bank or the Agent, in its sole discretion to be confidential or proprietary; (c) require any Bank or the Agent to establish procedures for allocating to specific transactions any tax savings or benefits attributable to payments in respect of taxes of the type described in this §5.3.2; or (d) require any Bank or the Agent to disclose or detail the basis of any calculation of the amount of any tax savings or benefit obtained by such Bank or the Agent or the basis of any determination made by such Bank under this paragraph.
Appears in 1 contract
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein with respect to such payments (but excluding (A) income and franchise taxes any tax that is imposed by FATCA or imposed on (or measured by) by the net income income, net profits or profits net worth of any Lender or the Administrative Agent by and any franchise taxes imposed on any Lender or the jurisdictions Administrative Agent in each case as a result of a present or former connection between such Lender or Agent and such jurisdiction or any political subdivision or taxing authority thereof or therein (other than solely as a result of entering into this Credit Agreement or any of the other Loan Documents or performing any obligations, receiving payments or enforcing any rights hereunder or thereunder) or as a result of any Lender or the Administrative Agent being organized under the laws of, or having its principal office or, in the case of which any Lender, its applicable lending office, located in the Administrative Agent or any Lender is organized jurisdiction imposing such tax (or any political subdivision thereof) (all such non-excluded taxes, levies, imposts, duties, charges, fees, deductions, withholdings, restrictions or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (Bconditions being referred to collectively as “Taxes”)) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that . The Borrower agrees to indemnify and hold harmless each Lender and the Borrower shall not be required to increase any Administrative Agent, and reimburse such amounts payable to any Lender or the Administrative Agent with respect to upon its written request, for the amount of any Taxes so levied or imposed and paid by such Non-Excluded Taxes that are attributable to (i) such Lender or the Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers reasonably available to it for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document. Notwithstanding the foregoing, the Borrower shall not be obligated to pay any additional amount pursuant to this §5.1.2 to any Lender or the Administrative Agent if such Lender or the Administrative Agent is not a U.S. Person and (a) is legally eligible but fails to comply with the requirements of §5.1.3 or (b) is not legally eligible to comply with the requirements of §5.1.3. If the Borrower is required to pay additional amounts to or for the account of any Lender pursuant to this §5.1.2, then such Lender will, at the request of the Borrower, change the jurisdiction of its applicable lending office if such change (i) would eliminate or reduce any such additional payment which may thereafter accrue and (ii) is, in such Lender’s sole good faith discretion, determined not to be non-immaterially disadvantageous or cause non-immaterial hardship to such Lender; provided that any out-of-pocket costs or expenses that are incurred in connection with such change shall be borne by the Borrower on behalf of such Lender. Each Lender and the Administrative Agent agrees that it will, to the extent not non-immaterially disadvantageous or causing non-immaterial hardship, (y) take all reasonable actions reasonably requested by the Borrower that are consistent with all legal and regulatory restrictions applicable to it to maintain all exemptions, if any, available to it from withholding taxes (whether available by treaty or existing administrative waiver) and (z) otherwise cooperate with the Borrower to minimize any amounts payable by the Borrower under this §5.1.2; provided, however, that in each case, all out-of-pocket costs of each Lender and the Administrative Agent relating to such action or cooperation requested by the Borrower shall be borne by the Borrower.
Appears in 1 contract
Samples: Revolving Credit Agreement (SeaCube Container Leasing Ltd.)
No Offset, etc. All (a) Subject to Section 5.2.3, all payments by the Borrower Borrowers hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxestaxes (including interest, penalties and additions to tax), levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) unless the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the Borrower is Borrowers are compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are imposed upon the Borrower Borrowers with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower Borrowers will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation Non-Excluded Taxes been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholdingBorrowers. The Borrower Borrowers will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or Borrowers under such other Loan Document.
(b) In addition, the Borrowers agree to pay to the relevant Governmental Authority in accordance with applicable law any current or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies (including, without limitation, mortgage recording taxes, transfer taxes and similar fees) imposed by the United States or any taxing authority thereof or therein that arise from any payment made hereunder ("Other Taxes").
(c) Subject to Section 5.2.3, the Borrowers agree to indemnify the Lenders and the Administrative Agent for the full amount of Non-Excluded Taxes (including additional amounts with respect thereto) and Other Taxes, and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, provided that the Lenders or the Administrative Agent, as the case may be, shall have provided the Borrowers with evidence, reasonably satisfactory to the Borrowers, of payment of Non-Excluded Taxes or Other Taxes, as the case may be.
(d) Any Lender or the Administrative Agent that becomes entitled to the payment of additional amounts pursuant to Section 5.2.2
(a) shall use reasonable efforts (consistent with applicable law) to file any document reasonably requested by the relevant Borrower or, if a Lender, to change the jurisdiction of its applicable lending office if the making of such a filing or change of office, as the case may be, would avoid the need for or reduce the amount of any payment of such additional amounts that may thereafter accrue and would not, in the good faith determination of such Lender or the Administrative Agent, as applicable, be disadvantageous to it.
(e) If a Lender or the Administrative Agent receives any refund with respect to taxes for which the Borrowers have paid any additional amounts pursuant to Section 5.2.2(a)U, then such Lender or the Administrative Agent, as applicable, shall promptly pay to the Borrowers the portion of the sum of such refund and any interest received with respect thereto as it determines, in its reasonable, good faith judgment, will leave it, after such payment, in no better or worse financial position than it would have been absent the imposition of such taxes and the payment of such additional amounts pursuant to Section 5.2.2
(a) U; provided, however, that (i) the Borrowers agree to promptly return any amount paid to the Borrowers pursuant to this Section 5.2.2(d)U upon notice from such Lender or the Administrative Agent, as applicable, that such refund or any portion thereof is required to be repaid to the relevant taxing authority, (ii) nothing in this Section 5.2.2
Appears in 1 contract
No Offset, etc. All payments by the Borrower Borrowers hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of of, and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, restrictions deductions or conditions withholdings of any nature now or hereafter imposed imposed, levied, collected, withheld or levied collected by any jurisdiction or any political subdivision thereof or taxing or other authority therein ("Non-Excluded Taxes"), excluding net income taxes, franchise taxes (Aimposed in lieu of net income taxes) income and franchise branch profits taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized as a result of a present or any political subdivision thereof, or by the jurisdictions in which former connection between the Administrative Agent or such Lender is located and the jurisdiction or the governmental authority imposing such tax or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent taxing authority thereof or such Lender is doing business or any political subdivision thereof and therein (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-"Excluded Taxes”"). If any such Non-Excluded Taxes are imposed upon required to be withheld from any amounts payable to the Borrower with respect to Administrative Agent or any amount payable by it Lender hereunder or under any of the other Loan Documents, the Borrower Borrowers will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars or at the Administrative Agent's option, Pounds Sterling or Euros, as shall be necessary to enable the Lenders Lenders, the Fronting Bank, the Issuing Bank or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided Borrowers, provided, however that the Borrower Borrowers shall be entitled to deduct and withhold and shall not be required to increase any such amounts payable to an Administrative Agent or Lender that is not a United States person defined in section 7701((A)(30) of the Code (a "NON-U.S. LENDER") for the amount of any Lender incremental taxes, levies, imposts, duties, charges, fees, deductions or withholdings which result from failure by the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure , as the case may be, to comply with the provisions requirements of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholdingSection 4.3.3. The Borrower Borrowers will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower Borrowers hereunder or under such other Loan Document. Each Borrower shall indemnify the Lenders for the amount of any incremental taxes, interest and penalties that may become payable by the Administrative Agent or the Lender as a result of any failure by such Borrower to pay any Non-Excluded taxes as required by this provision, and any taxes levied or imposed with respect to any indemnity payment made under this provision. Any such indemnification payment shall be made within (30)Business days after the date a Lender makes written demand therefor. Each Borrower's obligations under this provision shall survive payment or satisfaction in full of all other Obligations.
Appears in 1 contract
No Offset, etc. All (i) Subject to Sections 5.2(c) and 5.2(d), all payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxestaxes (including interest, penalties and additions to tax), levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation Non-Excluded Taxes been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document.
(ii) In addition, the Borrower agrees to pay to the relevant Governmental Authority in accordance with applicable law any current or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies (including, without limitation, mortgage recording taxes, transfer taxes and similar fees) imposed by the United States or any taxing authority thereof or therein that arise from any payment made hereunder (“Other Taxes”).
(iii) Subject to Section 5.2(c), the Borrower agrees to indemnify the Lenders and the Administrative Agent for the full amount of Non-Excluded Taxes (including additional amounts with respect thereto) and Other Taxes, and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto; provided, that the Lenders or the Administrative Agent, as the case may be, shall have provided the Borrower with evidence, reasonably satisfactory to the Borrower, of payment of Non-Excluded Taxes or Other Taxes, as the case may be.
(iv) Any Lender or the Administrative Agent that becomes entitled to the payment of additional amounts pursuant to Sections 5.2.(b)(i) and (ii) or indemnification pursuant to Section 5.2(b)(iii) shall use reasonable efforts (consistent with applicable law) to file any document reasonably requested by the Borrower or, if a Lender, to change the jurisdiction of its applicable lending office if the making of such a filing or change of office, as the case may be, would avoid the need for or reduce the amount of any payment of such additional amounts or indemnification that may thereafter accrue and would not, in the reasonable good faith determination of such Lender or the Administrative Agent, as applicable, be disadvantageous to it.
(v) If a Lender or the Administrative Agent receives any refund with respect to taxes for which the Borrower has paid any additional amounts pursuant to Sections 5.2(b)(i) or (ii), then such Lender or the Administrative Agent, as applicable, shall promptly pay to the Borrower the portion of the sum of such refund and any interest received with respect thereto as it determines, in its reasonable, good faith judgment, will leave it, after such payment, in no better or worse financial position than it would have been absent the imposition of such taxes and the payment of such additional amounts pursuant to Sections 5.2(b)(i) or (ii); provided, however, that (i) the Borrower agrees to promptly return any amount paid to the Borrower pursuant to this Section 5.2(b)(v) upon notice from such Lender or the Administrative Agent, as applicable, that such refund or any portion thereof is required to be repaid to the relevant taxing authority, (ii) nothing in this Section 5.2(b)(v) shall require a Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns), and (iii) no Lender shall be required to pay any amounts pursuant to this Section 5.2(b)(v) at any time when an Event of Default exists; provided, that upon such Event of Default ceasing to exist, all such amounts that would otherwise be required to be paid pursuant to this Section 5.2(b)(v) but for the effect of this clause (iii) shall be promptly so paid.
(vi) If the Borrower determines in good faith that a reasonable basis exists for contesting any Non-Excluded Taxes or Other Taxes for which additional amounts have been paid pursuant to Sections 5.2.(b)(i) or (ii), the relevant Lender or Administrative Agent (to the extent such Person reasonably determines in good faith that it will not suffer any adverse effect as a result thereof) shall cooperate with the Borrower in challenging such Non-Excluded Taxes or Other Taxes, at the Borrower’s expense, if so requested by the Borrower in writing.
Appears in 1 contract
Samples: Term Loan Agreement (TAL International Group, Inc.)
No Offset, etc. All (i) Subject to Section 5.2(c), all payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxesTaxes (including interest, penalties and additions to tax), levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation Non-Excluded Taxes been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes Taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document.
(ii) In addition, the Borrower agrees to pay to the relevant Governmental Authority in accordance with applicable law any current or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies (including, without limitation, mortgage recording taxes, transfer taxes and similar fees) imposed by the United States or any taxing authority thereof or therein that arise from any payment made hereunder (“Other Taxes”).
(iii) Subject to Section 5.2(c), the Borrower agrees to indemnify the Lenders and the Administrative Agent for the full amount of Non-Excluded Taxes (including additional amounts with respect thereto) and Other Taxes, and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, provided that the Lenders or the Administrative Agent, as the case may be, shall have provided the Borrower with evidence, reasonably satisfactory to the Borrower, of payment of Non-Excluded Taxes or Other Taxes, as the case may be.
(iv) Any Lender or the Administrative Agent that becomes entitled to the payment of additional amounts pursuant to Section 5.2.(b)(i) or indemnification pursuant to Section 5.2(b)(iii) shall use reasonable efforts (consistent with applicable law) to file any document reasonably requested by the relevant Borrower or, if a Lender, to change the jurisdiction of its applicable lending office if the making of such a filing or change of office, as the case may be, would avoid the need for or reduce the amount of any payment of such additional amounts that may thereafter accrue and would not, in the good faith determination of such Lender or the Administrative Agent, as applicable, be disadvantageous to it.
(v) If a Lender or the Administrative Agent receives any refund with respect to Taxes for which the Borrower has paid any additional amounts pursuant to Section 5.2(b)(i), then such Lender or the Administrative Agent, as applicable, shall promptly pay to the Borrower the portion of the sum of such refund and any interest received with respect thereto as it determines, in its reasonable, good faith judgment, will leave it, after such payment, in no better or worse financial position than it would have been absent the imposition of such Taxes and the payment of such additional amounts pursuant to Section 5.2(b)(i); provided, however, that (i) the Borrower agrees to promptly return any amount paid to the Borrower pursuant to this Section 5.2(b)(v) upon notice from such Lender or the Administrative Agent, as applicable, that such refund or any portion thereof is required to be repaid to the relevant taxing authority, (ii) nothing in this Section 5.2(b)(v) shall require a Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns), and (iii) no Lender shall be required to pay any amounts pursuant to this Section 5.2(b)(v) at any time which a Default or Event of Default exists (provided, that, upon the waiver or cure of any such Default or Event of Default, all such amounts that would otherwise be required to be paid pursuant to this Section 5.2(b)(v) but for the effect of this clause (iii) shall be promptly so paid).
(vi) If the Borrower determines in good faith that a reasonable basis exists for contesting any Non-Excluded Taxes for which additional amounts have been paid pursuant to Section 5.2(b)(i), the relevant Lender or Administrative Agent (to the extent such Person reasonably determines in good faith that it will not suffer any adverse effect as a result thereof) shall cooperate with the Borrower in challenging such Non-Excluded Taxes, at the Borrower’s expense, if so requested by the Borrower in writing.
Appears in 1 contract
No Offset, etc. All payments by the Borrower Borrowers hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) unless the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the Borrower is Borrowers are compelled by law to make such deduction or withholding withholding, excluding, (such non-excluded items referred to as “Non-Excluded Taxes”). If any such Non-Excluded Taxes are imposed upon i) in the Borrower with respect to any amount payable by it hereunder or under any case of each Lender and the other Loan Documents, the Borrower will pay to the Administrative Agent and Canadian Agent, for taxes imposed on its gross or net income, and franchise taxes imposed on it by the account jurisdiction under the laws of which such Lender or the Lenders Agent or Canadian Agent (as the case may be) is organized or by any political subdivision thereof or, in the Administrative Agentcase of each Lender, taxes imposed on its gross or net income, and franchise taxes imposed on it by the date on which jurisdiction of such amount is due Lender's Applicable Lending Office, or any political subdivision thereof and (ii) in the case of each Lender, United States income tax or withholding (a "withholding tax") payable with respect to payments hereunder or under such the other Loan DocumentDocuments under laws (including, such additional amount without limitation, any statute, treaty, ruling, court decision, determination or regulation) in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed effect and being applied on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor Reference Date (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2as hereinafter defined); provided, furtherhowever, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, any United States withholding tax payable as a result of any change in such laws occurring after the Reference Date shall not be so excluded; and provided further that if any applicable law, treaty or governmental rule, regulation or orderpayment by the Borrowers to the Agent, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of the Lenders is charged with any United States federal withholding tax not in effect on the Reference Date or if such withholding tax is increased subsequent to the Reference Date, such withholding tax or increased withholding tax shall not be deemed to result from a change in law within the meaning of the preceding proviso if such payment is effectively connected with a United States trade or business of the recipient subject to United States income taxes is no longer properly entitled by law thereon (all such non-excluded taxes, levies, imposts, duties, charges, fees, deductions, withholdings and liabilities being hereinafter referred to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document.50 -43-
Appears in 1 contract
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, Taxes unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are imposed upon the Borrower with respect to any amount payable by it the Borrower hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation Taxes been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholdingimposed. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document. The Borrower shall indemnify the Administrative Agent and each Lender, within ten (10) days after demand therefor, for the full amount of any Taxes imposed or asserted on or attributable to amounts payable under this Section paid by the Administrative Agent or such Lender, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower 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 be conclusive absent manifest error.
Appears in 1 contract
Samples: Senior Unsecured Credit Agreement (Barnes Group Inc)
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein (a "Governmental Authority") (excluding (A) net income taxes and franchise taxes imposed on (or measured by) the in lieu of net income or profits of any Lender or taxes imposed on the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized Bank as a result of a present or any political subdivision thereof, or by former connection between the jurisdictions in which jurisdiction of the Administrative Governmental Authority imposing such tax and the Agent or such Lender is located or any political subdivision thereof, or by Bank (except a connection arising solely from the jurisdictions in which the Administrative Agent or such Lender is doing business Bank having executed, delivered or any political subdivision thereof and (Bperformed its obligations or received a payment under, or enforced, this Credit Agreement or the Notes)) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders Banks or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders Banks or the Administrative Agent to receive the same net amount which the Lenders Banks or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document. In addition, to the extent any Bank receives a refund in respect of any taxes to which it has been indemnified by the Borrower pursuant to this ss.5.3 (and such Bank can determine, in its sole discretion and using any method which such Bank deems appropriate that all or any portion of such refund is allocable to any takes paid or indemnified by the Borrower under the Credit Agreement), it shall promptly repay such refund to the Borrower (to the extent of amounts that have been paid by the Borrower under this ss.5.3 with respect to such refund) of such Bank and without interest; provided, however, that the Borrower, upon the request of such Bank, agrees to return such refund (plus penalties, interest or other charges) to such Bank in the event such Bank is required to repay such refund for any reason whatsoever. Nothing contained in this Section 5.3 shall (a) entitle the Borrower to inspect or review any books or records of any Bank or the Agent; (b) require any Bank or the Agent to disclose any information concerning its tax position or any other information determined by any Bank or the Agent, in its sole discretion to be confidential or proprietary, (c) require any Bank or the Agent to establish procedures for allocating to specific transactions any tax savings or benefits attributable to payments in respect of taxes of the type described in this Section 5.3 or (d) require any Bank or the Agent to disclose or detail the basis of any calculation of the amount of any tax savings or benefit obtained by such Bank or the Agent or the basis of any determination made by such Bank under this paragraph.
Appears in 1 contract
No Offset, etc. All (a) Any and all payments by the Borrower Borrowers hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and free and clear of and without deduction or withholding for any taxesTaxes, leviesexcept as required by applicable law. In addition, impostseach Borrower shall pay all Other Taxes to the relevant governmental authority as required by applicable law.
(b) Subject to §6.2.2(f), dutiesthe Borrowers agree, chargesjointly and severally, fees, deductions, withholdings, restrictions to indemnify and hold harmless each Lender and the Agent for the full amount of Taxes or conditions of Other Taxes (including any nature now Taxes or hereafter Other Taxes imposed or levied by any jurisdiction on amounts payable under this §6.2.2) paid by such Lender or the Agent and any political subdivision thereof liability (including penalties, interest, additions to tax and expenses) arising therefrom or taxing with respect thereto, whether or other authority therein excluding not such Taxes or Other Taxes were correctly or legally asserted. Payment under this indemnification shall be made within thirty (A30) income and franchise taxes imposed on days after the date any Lender (through the Agent) or measured bythe Agent makes written demand therefor.
(c) If any Borrower or the net income applicable withholding agent shall be required by law to deduct or profits withhold any Taxes or Other Taxes from or in respect of any sum payable hereunder to any Lender or the Administrative Agent, then, subject to §6.2.2(f):
(i) the sum payable shall be increased as necessary so that after making all required deductions and withholdings of Taxes or Other Taxes (including deductions and withholdings of Taxes or Other Taxes applicable to additional sums payable under this §6.2.2) such Lender or the Agent, as the case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made;
(ii) such Borrower or the applicable withholding agent shall make such deductions and withholdings; and
(iii) such Borrower or the applicable withholding agent shall pay the full amount deducted or withheld to the relevant taxing authority or other authority in accordance with applicable law.
(d) Within thirty (30) days after the date of any payment by any Borrower of Taxes or Other Taxes, such Borrower shall furnish the Agent the original or a certified copy of a receipt evidencing payment thereof, or other evidence of payment reasonably satisfactory to the Agent.
(e) If any Borrower is required to pay additional amounts to any Lender or the Agent pursuant to subsection (b) or (c) of this §6.2.2, then such Lender shall use commercially reasonable efforts (consistent with legal and regulatory restrictions) to change the jurisdiction of its lending office so as to eliminate any such additional payment by such Borrower which may thereafter accrue, if such change in the jurisdictions judgment of such Lender is not otherwise disadvantageous to such Lender.
(f) No Borrower shall be obligated to indemnify any Lender or the Agent pursuant to §6.2.2(b) or gross up any payments to any Lender or the Agent pursuant to §6.2.2(c) in respect of United States federal withholding taxes to the extent such Lender or the Agent is organized under the laws of which a jurisdiction outside the Administrative United States and to the extent imposed as a result of (i) the failure of such Lender or the Agent to deliver the relevant form or any Lender is organized or any political subdivision thereof, or forms prescribed by the jurisdictions Internal Revenue Service of the United States referred to in which §6.2.2(h) if the Administrative Agent or such Lender is located entitled under the Code to deliver such forms, (ii) the information or certifications made in such forms being untrue or inaccurate on the date delivered or such form or forms not establishing a complete exemption for United States withholding taxes (except by reason of a change in United States tax laws or regulations occurring after the Closing Date) or (iii) such Lender or the Agent designating a successor lending office which has the effect of causing such Lender or Agent to become obligated for tax payments (or being subject to added United States federal withholding taxes) in excess of those in effect immediately prior to such designation, unless such designation is made at the request of a Borrower.
(g) If a Lender or the Agent receives the benefit of a refund or credit which it determines in its sole discretion is attributable to any political subdivision thereofTaxes or Other Taxes as to which it has been indemnified by a Borrower, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”). If any such Non-Excluded Taxes are imposed upon the Borrower with respect to any which a Borrower has paid increased amounts hereunder, it shall within thirty (30) days after the date of such receipt pay over the amount payable by it hereunder of such refund or under any of the other Loan Documents, the Borrower will pay credit (to the Administrative Agentextent so attributable) to such Borrower, for the account net of the Lenders or (as the case may be) the Administrative Agent, on the date on which all reasonable out-of-pocket expenses of such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders Lender or the Administrative Agent related to receive the same net amount which the Lenders claiming such refund or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrowercredit; provided however provided, however, that the Borrower shall not be required to increase any such amounts payable to (i) any Lender or the Administrative Agent may determine, in its sole discretion consistent with the policies of such Lender or the Agent, whether to seek such a refund or credit; (ii) any Taxes or Other Taxes that are imposed on a Lender or the Agent as a result of a disallowance or reduction (including through the expiration of any tax credit carryover or carryback of such lender or the Agent that otherwise would not have expired) of any such refund or credit with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or which such Lender at or the time such Administrative Agent or Lender becomes has made a party payment to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the a Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document.6.2.2
Appears in 1 contract
No Offset, etc. All (a) Subject to Section 5.2.3, all payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxestaxes (including interest, penalties and additions to tax), levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative AgentLoan Servicer, for the account of the Lenders or (as the case may be) the Administrative AgentLoan Servicer, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent Loan Servicer to receive the same net amount which the Lenders or the Administrative Agent Loan Servicer would have received on such due date had no such obligation Non-Excluded Taxes been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent Loan Servicer certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document.
(b) In addition, the Borrower agrees to pay to the relevant Governmental Authority in accordance with applicable law any current or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies (including, without limitation, mortgage recording taxes, transfer taxes and similar fees) imposed by the United States or any taxing authority thereof or therein that arise from any payment made hereunder ("Other Taxes").
(c) Subject to Section 5.2.3, the Borrower agrees to indemnify the Lenders and the Loan Servicer for the full amount of Non-Excluded Taxes (including additional amounts with respect thereto) and Other Taxes, and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, provided that the Lenders or the Loan Servicer, as the case may be, shall have provided the Borrower with evidence, reasonably satisfactory to the Borrower, of payment of Non-Excluded Taxes or Other Taxes, as the case may be.
(d) Any Lender or the Loan Servicer that becomes entitled to the payment of additional amounts pursuant to Section 5.2.2(a) or indemnification pursuant to Section 5.2.2(c), such Person shall use reasonable efforts (consistent with applicable law) to file any document reasonably requested by the Borrower or, with respect to a Lender, to change the jurisdiction of its applicable lending office if the making of such a filing or change of office, as the case may be, would avoid the need for or reduce the amount of any payment of such additional amounts that may thereafter accrue and would not, in the good faith determination of such Lender or the Loan Servicer, as applicable, be disadvantageous to it.
(e) If a Lender or the Loan Servicer receives any refund with respect to taxes for which the Borrower has paid any additional amounts pursuant to Section 5.2.2
(a) U, then such Lender or the Loan Servicer, as applicable, shall promptly pay to the Borrower the portion of the sum of such refund and any interest received with respect thereto as it determines, in its reasonable, good faith judgment, will leave it, after such payment, in no better or worse financial position than it would have been absent the imposition of such taxes and the payment of such additional amounts pursuant to Section 5.2.2
(a) U; provided, however, that (i) the Borrower agrees to promptly return any amount paid to the Borrower pursuant to this Section 5.2.2
Appears in 1 contract
No Offset, etc. All payments by the Borrower Borrowers hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) unless the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the Borrower is Borrowers are compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower Borrowers with respect to any amount payable by it them hereunder or under any of the other Loan Documents, the Borrower Borrowers will pay to the Administrative Agent, for the account of the Lenders Lenders, the Swingline Lender, the applicable Agent or (as the case may be) the Administrative Agentapplicable Issuing Bank, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars or the applicable Optional Currency as shall be necessary to enable the Lenders Lenders, the Swingline Lender, such Agent or the Administrative Agent such Issuing Bank to receive the same net amount which the Lenders Lenders, the Swingline Lender, such Agent or the Administrative Agent such Issuing Bank would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholdingBorrowers. The Borrower Borrowers will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower Borrowers hereunder or under such other Loan Document.
Appears in 1 contract
Samples: Multicurrency Revolving Credit Agreement (Borders Group Inc)
No Offset, etc. (a) All payments by the Borrower Borrowers hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) unless the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the Borrower is Borrowers are compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower Borrowers with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower Borrowers will pay to the Administrative Agent, for the account of the Lenders applicable Banks, and the Issuing Bank or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders applicable Banks, and the Issuing Bank or the Administrative Agent to receive the same net amount which the Lenders applicable Banks, and the Issuing Bank or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholdingBorrowers. The Borrower Borrowers will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower Borrowers hereunder or under such other Loan Document.
(b) On or before the date it becomes a party to this Agreement and from time to time thereafter upon any change in status rendering any certificate or document previously delivered pursuant to this SECTION 5.3.2 invalid or inaccurate, each Bank that is organized under the laws of a jurisdiction outside the United States shall (if legally able to do so) deliver to the Borrowers such certificates, documents or other evidence, as required by the Code or Treasury Regulations issued pursuant thereto, including Internal Revenue Service Form 1001 or Form 4224 and any other certificate or statement of exemption required by Treasury Regulation Section 1.1441-1, 1.1441-4 or 1.1441-6(c) or any subsequent version thereof or subsequent version thereto, properly completed and duly executed by such Bank establishing that such payment is (a) not subject to United States Federal withholding tax under the Code because such payment is effectively connected with conduct by such Bank of a trade or business in the United States or (b) totally exempt from United States Federal withholding tax or, if due to a change in law occurring after the date such Bank became a party hereto, subject to a reduced rate of such tax under a provision of an applicable tax treaty. The Borrower shall not be required to pay any additional amounts to any Bank pursuant to this SECTION 5.3.2 to the extent that the obligation to pay such additional amounts would not have arisen but for a failure by such Bank to comply with the provisions of the preceding sentence.
Appears in 1 contract
Samples: Revolving Credit Agreement (Trico Marine Services Inc)
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein with respect to such payments (but excluding (A) income and franchise taxes any tax imposed on (or measured by) by the net income income, net profits or profits net worth of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or and any franchise taxes imposed on any Lender is organized or the Agent in each case as a result of a present or former connection between such Lender or Agent and such jurisdiction or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent taxing authority thereof or such Lender is located therein (other than solely as a result of entering into this Credit Agreement or any political subdivision thereofof the other Loan Documents or performing any obligations, receiving payments or by enforcing any rights hereunder or thereunder) or as a result of any Lender or the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (Bnot being a U.S. Person) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers reasonably available to it for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document. Notwithstanding the foregoing, the Borrower shall not be obligated to pay any additional amount pursuant to this §5.1.2 to any Lender or the Agent if such Lender or the Agent is not a U.S. Person and (a) is legally eligible but fails to comply with the requirements of §5.1.3 or (b) is not legally eligible to comply with the requirements of §5.1.3. If the Borrower is required to pay additional amounts to or for the account of any Lender pursuant to this §5.1.2, then such Lender will, at the request of the Borrower, change the jurisdiction of its applicable lending office if such change (i) would eliminate or reduce any such additional payment which may thereafter accrue and (ii) is, in such Lender’s sole good faith discretion, determined not to be non-immaterially disadvantageous or cause non-immaterial hardship to such Lender; provided that any out-of-pocket costs or expenses that are incurred in connection with such change shall be borne by the Borrower on behalf of such Lender. Each Lender and the Agent agrees that it will, to the extent not non-immaterially disadvantageous or causing non-immaterial hardship, (y) take all reasonable actions reasonably requested by the Borrower that are consistent with all legal and regulatory restrictions applicable to it to maintain all exemptions, if any, available to it from withholding taxes (whether available by treaty or existing administrative waiver) and (z) otherwise cooperate with the Borrower to minimize any amounts payable by the Borrower under this §5.1.2; provided, however, that in each case, all out-of-pocket costs of each Lender and the Agent relating to such action or cooperation requested by the Borrower shall be borne by the Borrower.
Appears in 1 contract
Samples: Revolving Credit Agreement (SeaCube Container Leasing Ltd.)
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory Loan, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative AgentLender, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent Lender to receive the same net amount which the Lenders or the Administrative Agent Lender would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase (except for any such amounts payable to any Lender amount deducted or the Administrative Agent withheld with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed tax on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such income of Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding). The Borrower will deliver promptly to the Administrative Agent Lender certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document. Lender shall reimburse Borrower upon its receipt of a refund from any Charging Authority in respect of a deduction or withholding by the Borrower paid to such Charging Authority and for which the Borrower made Lender whole.
Appears in 1 contract
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, 40 duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein (excluding (A) income franchise taxes and franchise taxes imposed on (or measured by) by the net income income, profits or profits receipts of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereofLender, or by the jurisdictions in which the Administrative Agent or all such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (Bnon-excludable items being called "TAXES") any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower in respect of any Taxes with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document.
Appears in 1 contract
Samples: Revolving Credit Agreement (Friendly Ice Cream Corp)
No Offset, etc. (a) All payments by the Borrower or a Guarantor hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxestaxes (including interest, penalties and additions to tax), levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower or a Guarantor is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are imposed upon the Borrower or a Guarantor with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower or such Guarantor will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation Non-Excluded Taxes been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholdingGuarantor. The Borrower and such Guarantor will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document.
(b) In addition, the Borrower agrees to pay to the relevant Governmental Authority in accordance with applicable law any current or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies (including, without limitation, mortgage recording taxes, transfer taxes and similar fees) imposed by the United States or any taxing authority thereof or therein that arise from any payment made hereunder (“Other Taxes”).
(c) The Borrower agrees to indemnify the Lenders and the Administrative Agent for the full amount of Non-Excluded Taxes (including additional amounts with respect thereto) and Other Taxes, and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, provided that the Lenders or the Administrative Agent, as the case may be, shall have provided the Borrower with evidence, reasonably satisfactory to the Borrower, of payment of Non-Excluded Taxes or Other Taxes, as the case may be.
(d) Upon the reasonable written request of the Borrower made to any Lender or the Administrative Agent that becomes entitled to the payment of additional amounts pursuant to Section 5.2.2(a) or indemnification pursuant to Section 5.2.2(c), such Lender or the Administrative Agent, as applicable, shall use reasonable efforts (consistent with applicable law) to file any document reasonably requested by the Borrower or, if a Lender, to change the jurisdiction of its applicable lending office if the making of such a filing or change of office, as the case may be, would avoid the need for or reduce the amount of any payment of such additional amounts that may thereafter accrue and would not, in the good faith determination of such Lender or the Administrative Agent, as applicable, subject such Lender or Administrative Agent to any unreimbursed cost or expense and be disadvantageous to such Lender or Administrative Agent, as applicable. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or the Administrative Agent in connection with any such filing or change of office.
(e) If a Lender or the Administrative Agent receives any refund with respect to taxes for which the Borrower has paid any additional amounts pursuant to Section 5.2.2(a), then such Lender or the Administrative Agent, as applicable, shall promptly pay to the Borrower the portion of the sum of such refund and any interest received with respect thereto as it determines, in its reasonable, good faith judgment, will leave it, after such payment, in no better or worse financial position than it would have been absent the imposition of such taxes and the payment of such additional amounts pursuant to Section 5.2.2(a); provided, however, that (i) the Borrower agrees to promptly return any amount paid to the Borrower pursuant to this Section 5.2.2(e) upon notice from such Lender or the Administrative Agent, as applicable, that such refund or any portion thereof is required to be repaid to the relevant taxing authority, (ii) nothing in this Section 5.2.2(e) shall require a Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns), and (iii) no Lender shall be required to pay any amounts pursuant to this Section 5.2.2(e) at any time which a Default or Event of Default exists (provided, that, upon the waiver or cure of any such Default or Event of Default, all such amounts that would otherwise be required to be paid pursuant to this Section 5.2.2(e) but for the effect of this clause (iii) shall be promptly so paid).
(f) If the Borrower determines in good faith that a reasonable basis exists for contesting any Non-Excluded Taxes for which additional amounts have been paid pursuant to Section 5.2.2(a), the relevant Lender or Administrative Agent (to the extent such Person reasonably determines in good faith that it will not suffer any adverse effect as a result thereof) shall cooperate with the Borrower in challenging such Non-Excluded Taxes, at the Borrower’s expense, if so requested by the Borrower in writing.
Appears in 1 contract
No Offset, etc. All payments by the Borrower Borrowers hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) unless the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the Borrower is Borrowers are compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower Borrowers with respect to any amount payable by it them hereunder or under any of the other Loan Documents, the Borrower Borrowers will pay to the Administrative Agent, for the account of the Lenders applicable Lenders, the Swingline Lender, the applicable Agent or (as the case may be) the Administrative Agentapplicable Issuing Bank, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable such Lenders, the Lenders Swingline Lender, such Agent or the Administrative Agent such Issuing Bank to receive the same net amount which such Lenders, the Lenders Swingline Lender, such Agent or the Administrative Agent such Issuing Bank would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholdingBorrowers. The Borrower Borrowers will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower Borrowers hereunder or under such other Loan Document.
Appears in 1 contract
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (Athe "Taxes") income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders Banks or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders Banks or the Administrative Agent to receive the same net amount which the Lenders Banks or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document. Each Bank which is not a bank organized under the laws of the United States or any state thereof agrees, as soon as practicable after a request by the Borrower to do so, to file all appropriate forms and take other appropriate action to obtain a certificate or other appropriate document from the appropriate governmental authority in the jurisdiction imposing the relevant taxes, establishing that it is entitled to receive payments of principal and interest under this Credit Agreement and the Revolving Credit Notes without deduction and free from withholding of any Taxes imposed by such jurisdiction; provided, that, if it is unable, for any 23 reason, to establish such exemption, or to file such forms and, in any event, during such period of time as such request for exemption is pending, the Borrower shall nonetheless remain obligated under the terms of the immediately preceding paragraph. In the event any such Bank receives a refund of any Taxes paid by the Borrower pursuant to this Section 6.2 it will pay to the Borrower the amount of such refund promptly upon receipt thereof; provided, however, if at any time thereafter it is required to return such refund, the Borrower shall promptly repay to it the amount of such refund.
Appears in 1 contract
No Offset, etc. (a) All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and and, except as provided in paragraph (c) below, free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, restrictions deductions or conditions withholdings of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will will, except as provided in paragraph (c) below, pay to the Administrative Agent, for the account of the Lenders Banks or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders Banks or the Administrative Agent to receive the same net amount which the Lenders Banks or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document.
(b) Each Bank and the Agent that is not a U.S. Person as defined in Section 7701(a)(30) of the Code hereby agrees that, if and to the extent it is legally able to do so, it shall, prior to the date of the first payment by the Borrower hereunder to be made to such Bank or the Agent or for such Bank's or the Agent's account, deliver to the Borrower and the Agent, as applicable, such certificates, documents or other evidence, as and when required by the Code or Treasury Regulations issued pursuant thereto, including two (2) duly completed copies of Internal Revenue Service Form W-8BEN or Form W-8ECI and any other certificate or statement of exemption required by Treasury Regulations, or any subsequent versions thereof or successors thereto, properly completed and duly executed by such Bank or the Agent establishing that with respect to payments of principal, interest or fees hereunder it is (i) not subject to United States federal withholding tax under the Code because such payment is effectively connected with the conduct by such Bank or Agent of a trade or business in the United States or (ii) totally exempt or partially exempt from United States federal withholding tax under a provision of an applicable tax treaty. Each Bank or Agent agrees that it shall, promptly upon a change of its lending office or the selection of any additional lending office, to the extent the forms previously delivered by it pursuant to this section are no longer effective, and promptly upon the Borrower's or the Agent's reasonable request after the occurrence of any other event (including the passage of time) requiring the delivery of a Form W-8BEN or Form W-8ECI in addition to or in replacement of the forms previously delivered, deliver to the Borrower and the Agent, as applicable, if and to the extent it is properly entitled to do so, a properly completed and executed Form W-8BEN or Form W-8ECI (or any successor forms thereto). Unless the Borrower and the Agent have received forms or other documents satisfactory to them indicating that such payments hereunder or under the other Loan Documents are not subject to the United States federal withholding tax, the Borrower or the Agent shall withhold taxes from such payments at the applicable statutory rate, or a reduced rate pursuant to an applicable tax treaty if such Bank has delivered a form evidencing such tax treaty benefit.
(c) Notwithstanding paragraph (a) above, the Borrower shall not be required to pay any additional amounts to any Bank or the Agent for the account of the lending office of such Bank or Agent, pursuant to this Section 5.2.2, if (i) the obligation to pay such additional amounts would not have arisen but for a failure by such Bank or the Agent to comply with the provisions of subsection (b) above; (ii) the Bank or the Agent is not eligible, in respect of such lending office, for complete exemption from United States federal withholding tax with respect to payments of interest, principal or fees under this Credit Agreement or under any of the other Loan Documents, other than by reason of any change, after the Initial Date, of any applicable law, treaty or regulation by any governmental authority or other agency charged with the interpretation or administration thereof; or (iii) the tax is an income or franchise tax imposed on net income either by the jurisdiction under which such Bank or the Agent is organized or any political subdivision thereof or in which its principal office is located or by the jurisdiction of such Bank's or Agent's lending office or any political subdivision thereof. For purposes of this subsection (c), the term "Initial Date" shall mean, with respect to any Bank or the Agent which is a party hereto on the Effective Date, and with respect to each assignee or transferee of any Bank, the date of the grant of the participation in, or transfer or assignment of an interest hereunder to such assignee or transferee.
Appears in 1 contract
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the unless a Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower Loan Parties will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document. Each Lender claiming any additional amounts payable under this §5.2.2 agrees to use reasonable efforts (consistent with legal and regulatory restrictions) to execute and deliver all such documents and instruments as the Borrower shall reasonably request or to change the jurisdiction of its applicable lending office if the execution of such documents or the making of such a change would avoid the need for or substantially reduce the amount of additional amounts which would thereafter accrue and would not, in the sole and absolute determination of such Lender, be otherwise disadvantageous to such Lender, which determination by such Lender shall be conclusive. The Borrower shall not be liable for taxes paid by the Administrative Agent or any Lender that are based upon the Administrative Agent’s or such Lender’s net income or for any withholdings required to be made pursuant to applicable law that are credited against taxes based on the Administrative Agent’s or such Lender’s net income.
Appears in 1 contract
Samples: Revolving Credit Agreement (CAI International, Inc.)
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein with respect to such payments (but excluding (A) income and franchise taxes any tax imposed on (or measured by) by the net income income, net profits or profits net worth of any Lender or the Administrative Agent by the jurisdictions under the laws of which and any franchise taxes imposed on any Lender or the Administrative Agent in each case as a result of a present or any former connection between such Lender is organized or Agent and such jurisdiction or any political subdivision thereofor taxing authority thereof or therein (other than solely as a result of entering into this Credit Agreement or any of the other Loan Documents or performing any obligations, receiving payments or by the jurisdictions in which enforcing any rights hereunder or thereunder) or as a result of any Lender or the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (Bnot being a U.S. Person) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers reasonably available to it for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document. Notwithstanding the foregoing, the Borrower shall not be obligated to pay any additional amount pursuant to this §5.1.2 to any Lender or the Administrative Agent if such Lender or the Administrative Agent is not a U.S. Person and (a) is legally eligible but fails to comply with the requirements of §5.1.3 or (b) is not legally eligible to comply with the requirements of §5.1.3. If the Borrower is required to pay additional amounts to or for the account of any Lender pursuant to this §5.1.2, then such Lender will, at the request of the Borrower, change the jurisdiction of its applicable lending office if such change (i) would eliminate or reduce any such additional payment which may thereafter accrue and (ii) is, in such Lender’s sole good faith discretion, determined not to be non-immaterially disadvantageous or cause non-immaterial hardship to such Lender; provided that any out-of-pocket costs or expenses that are incurred in connection with such change shall be borne by the Borrower on behalf of such Lender. Each Lender and the Administrative Agent agrees that it will, to the extent not non-immaterially disadvantageous or causing non-immaterial hardship, (y) take all reasonable actions reasonably requested by the Borrower that are consistent with all legal and regulatory restrictions applicable to it to maintain all exemptions, if any, available to it from withholding taxes (whether available by treaty or existing administrative waiver) and (z) otherwise cooperate with the Borrower to minimize any amounts payable by the Borrower under this §5.1.2; provided, however, that in each case, all out-of-pocket costs of each Lender and the Administrative Agent relating to such action or cooperation requested by the Borrower shall be borne by the Borrower.
Appears in 1 contract
Samples: Revolving Credit Agreement (SeaCube Container Leasing Ltd.)
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein (a "Governmental Authority") (excluding (A) net income taxes and franchise taxes imposed on (or measured by) the in lieu of net income or profits of any Lender or taxes imposed on the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized Bank as a result of a present or any political subdivision thereof, or by former connection between the jurisdictions in which jurisdiction of the Administrative Governmental Authority imposing such tax and the Agent or such Lender is located or any political subdivision thereof, or by Bank (except a connection arising solely from the jurisdictions in which the Administrative Agent or such Lender is doing business Bank having executed, delivered or any political subdivision thereof and (Bperformed its obligations or received a payment under, or enforced, this Credit Agreement or the Revolving Credit Notes)) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders Banks or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders Banks or the Administrative Agent to receive the same net amount which the Lenders Banks or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document. In addition, to the extent any Bank receives a refund in respect of any taxes to which it has been indemnified by the Borrower pursuant to this §6.2 (and such Bank can determine, in its sole discretion and using any method which such Bank deems appropriate that all or any portion of such refund is allocable to any takes paid or indemnified by the Borrower under the Credit Agreement), it shall promptly repay such refund to the Borrower (to the extent of amounts that have been paid by the Borrower under this §6.2 with respect to such refund) of such Bank and without interest; provided, however, that the Borrower, upon the request of such Bank, agrees to return such refund (plus penalties, interest or other charges) to such Bank in the event such Bank is required to repay such refund for any reason whatsoever. Nothing contained in this §6.2 shall (a) entitle the Borrower to inspect or review any books or records of any Bank or the Agent; (b) require any Bank or the Agent to disclose any information concerning its tax position or any other information determined by any Bank or the Agent, in its sole discretion to be confidential or proprietary, (c) require any Bank or the Agent to establish procedures for allocating to specific transactions any tax savings or benefits attributable to payments in respect of taxes of the type described in this §6.2 or (d) require any Bank or the Agent to disclose or detail the basis of any calculation of the amount of any tax savings or benefit obtained by such Bank or the Agent or the basis of any determination made by such Bank under this paragraph.
Appears in 1 contract
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein (excluding (A) income franchise taxes and franchise taxes imposed on (or measured by) by the net income income, profits or profits receipts of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereofLender, or by the jurisdictions in which the Administrative Agent or all such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (Bnon-excludable items being called “Taxes”) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower in respect of any Taxes with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document.
Appears in 1 contract
Samples: Revolving Credit Agreement (Friendly Ice Cream Corp)
No Offset, etc. All payments by the Borrower Borrowers hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, reasonable fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) unless the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the Borrower is Borrowers are compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower Borrowers with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower Borrowers will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that Borrowers. Where taxes, deductions or withholdings are imposed upon the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent Borrowers with respect to any amount payable by the Borrowers hereunder or under any of the other Loan Documents as a result of characteristics of the Agent, a Lender or a Participant, no payment of additional amounts is required under this Section 5.3.2, in respect of such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s taxes, deductions or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except withholdings to the extent that such Lender’s assignor Agent, Lender or Participant (if anyas the case may be) was entitledsubject to such taxes, deductions or withholdings under the law in effect at the time of assignmentthat it became an Agent, to receive additional amounts from the Borrower with respect Lender or Participant or subsequently became subject to such obligation pursuant to this §6.3.2; providedtaxes, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, deductions or withholdings other than as a result of any a change in any applicable law, treaty or governmental rule, regulation or order, law or any change actions of the Borrowers. In addition, no payment of additional amounts is required under this Section 5.3.2 in interpretationrespect of taxes, administration deductions or application thereofwithholdings to the extent that such taxes, deductions or withholdings are imposed as a result of a failure by the Agent, a Non-U.S. Lender, a Participant or any person in the chain of payment between the Borrowers and the Agent, Lender or Participant, as the case may be, to provide, in accordance with applicable procedures, properly completed and executed tax forms that was previously entitled they are legally permitted to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholdingprovide. The Borrower Borrowers will deliver promptly to the Administrative Agent certificates or other valid vouchers reasonably available to them for all taxes or other charges deducted from or paid with respect to payments made by the Borrower Borrowers hereunder or under such other Loan Document.
Appears in 1 contract
No Offset, etc. All (a) Subject to Section 5.2.3, all payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxestaxes (including interest, penalties and additions to tax), levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation Non-Excluded Taxes been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document.
(b) In addition, the Borrower agrees to pay to the relevant Governmental Authority in accordance with applicable law any current or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies (including, without limitation, mortgage recording taxes, transfer taxes and similar fees) imposed by the United States or any taxing authority thereof or therein that arise from any payment made hereunder ("Other Taxes").
(c) Subject to Section 5.2.3, the Borrower agrees to indemnify the Lenders and the Administrative Agent for the full amount of Non-Excluded Taxes (including additional amounts with respect thereto) and Other Taxes, and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, provided that the Lenders or the Administrative Agent, as the case may be, shall have provided the Borrower with evidence, reasonably satisfactory to the Borrower, of payment of Non-Excluded Taxes or Other Taxes, as the case may be.
(d) Any Lender or the Administrative Agent that becomes entitled to the payment of additional amounts pursuant to Section 5.2.2(a) or indemnification pursuant to Section 5.2.2(c) shall use reasonable efforts (consistent with applicable law) to file any document reasonably requested by the relevant Borrower or, if a Lender, to change the jurisdiction of its applicable lending office if the making of such a filing or change of office, as the case may be, would avoid the need for or reduce the amount of any payment of such additional amounts that may thereafter accrue and would not, in the good faith determination of such Lender or the Administrative Agent, as applicable, be disadvantageous to it.
(e) If a Lender or the Administrative Agent receives any refund with respect to taxes for which the Borrower has paid any additional amounts pursuant to Section 5.2.2(a), then such Lender or the Administrative Agent, as applicable, shall promptly pay to the Borrower the portion of the sum of such refund and any interest received with respect thereto as it determines, in its reasonable, good faith judgment, will leave it, after such payment, in no better or worse financial position than it would have been absent the imposition of such taxes and the payment of such additional amounts pursuant to Section 5.2.2(a); provided, however, that (i) the Borrower agrees to promptly return any amount paid to the Borrower pursuant to this Section 5.2.2(d) upon notice from such Lender or the Administrative Agent, as applicable, that such refund or any portion thereof is required to be repaid to the relevant taxing authority, (ii) nothing in this Section 5.2.2
Appears in 1 contract
No Offset, etc. All payments by the Borrower Borrowers hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) unless the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the Borrower is Borrowers are compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower Borrowers with respect to any amount payable by it them hereunder or under any of the other Loan Documents, the Borrower Borrowers will pay to the Administrative Agent, for the account of the Lenders Lenders, the Swingline Lender, the applicable Agent or (as the case may be) the Administrative AgentIssuing Bank, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars or the applicable Optional Currency as shall be necessary to enable the Lenders Lenders, the Swingline Lender, such Agent or the Administrative Agent Issuing Bank to receive the same net amount which the Lenders Lenders, the Swingline Lender, such Agent or the Administrative Agent Issuing Bank would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholdingBorrowers. The Borrower Borrowers will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower Borrowers hereunder or under such other Loan Document.
Appears in 1 contract
Samples: Multicurrency Revolving Credit Agreement (Borders Group Inc)
No Offset, etc. All (a) Subject to Section 6.2.2(f), any and all payments by the Borrower hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and free and clear of and without deduction or withholding for any taxesTaxes. In addition, leviesthe Borrower shall pay all Other Taxes.
(b) Subject to Section 6.2.2(f), imposts, duties, charges, fees, deductions, withholdings, restrictions the Borrower agrees to indemnify and hold harmless each Lender and the Administrative Agent for the full amount of Taxes or conditions of Other Taxes (including any nature now Taxes or hereafter Other Taxes imposed or levied by any jurisdiction on amounts payable under this Section 6.2.2) paid by such Lender or the Administrative Agent and any political subdivision thereof liability (including such penalties, interest, additions to tax and expenses) arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted. Payment under this indemnification shall be made within thirty (30) days after the date any Lender (through the Administrative Agent) or the Administrative Agent makes written demand thereof.
(c) If the Borrower shall be required by law to deduct or withhold any Taxes or Other Taxes from or in respect of any sum payable hereunder to any Lender or the Administrative Agent, then, subject to Section 6.2.2(f):
(i) the sum payable shall be increased as necessary so that after making all required deductions and withholdings (including deductions and withholdings applicable to additional sums payable under this Section 6.2.2) such Lender or the Administrative Agent, as the case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made;
(ii) the Borrower shall make such deductions and withholdings;
(iii) the Borrower shall pay the full amount deducted or withheld to the relevant taxing authority or other authority therein excluding in accordance with applicable law; and
(A) income and franchise taxes imposed on (or measured byiv) the net income Borrower shall also pay to such Lender or profits the Administrative Agent for the account of such Lender, at the time interest is paid, all additional amounts which the respective Lender specifies as necessary to preserve the after-tax yield such Lender would have received if such Taxes or Other Taxes had not been imposed.
(d) Within thirty (30) days after the date of any payment by the Borrower of Taxes or Other Taxes, the Borrower shall furnish the Administrative Agent the original or a certified copy of a receipt evidencing payment thereof, or other evidence of payment reasonably satisfactory to the Administrative Agent.
(e) If the Borrower is required to pay additional amounts to any Lender or the Administrative Agent pursuant to subsection (b) or (c) of this Section 6.2.2, then such Lender shall use commercially reasonable efforts (consistent with legal and regulatory restrictions) to change the jurisdiction of its lending office so as to eliminate any such additional payment by the jurisdictions Borrower which may thereafter accrue, if such change in the judgment of such Lender is not otherwise disadvantageous to such Lender.
(f) No Borrower shall be obligated to indemnify any Lender or the Administrative Agent pursuant to Section 6.2.2(b) or gross up any payments to any Lender or the Administrative Agent pursuant to Section 6.2.2(c) in respect of United States federal withholding taxes to the extent such Lender or the Administrative Agent is organized under the laws of which a jurisdiction outside the United States and to the extent imposed as a result of (i) the failure of such Lender or the Administrative Agent to deliver the relevant form or any Lender is organized or any political subdivision thereof, or forms prescribed by the jurisdictions Internal Revenue Service of the United States referred to in which Section 16.2(i) if the Administrative Agent or such Lender is located or any political subdivision thereofentitled under the Code to deliver such forms, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”). If any such Non-Excluded Taxes are imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may beii) the Administrative Agent, information or certifications made in such forms being untrue or inaccurate on the date on which delivered or such amount is due and payable hereunder form or under forms not establishing a complete exemption for United States withholding taxes (excepting by reason of a change in United States tax laws or regulations occurring after the Closing Date) or (iii) such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders Lender or the Administrative Agent designating a successor lending office which has the effect of causing such Lender or Administrative Agent to receive become obligated for tax payments (or being subject to added United States federal withholding taxes) in excess of those in effect immediately prior to such designation, unless such designation is made at the same net amount which request of the Lenders Borrower.
(g) If a Lender or the Administrative Agent would have received on such due date had no such obligation receives the benefit of a refund or credit which it determines in its sole discretion is attributable to any Taxes or Other Taxes as to which it has been imposed upon indemnified by the Borrower; provided however that , or with respect to which the Borrower has paid increased amounts hereunder, it shall not be required within thirty (30) days after the date of such receipt pay over the amount of such refund or credit (to increase any the extent so attributable) to the Borrower, net of all reasonable out-of-pocket expenses of such amounts payable Lender or the Administrative Agent related to claiming such refund or credit; provided, however, that (i) any Lender or the Administrative Agent may determine, in its sole discretion consistent with respect the policies of such Lender or the Administrative Agent, whether to seek such a refund or credit; (ii) any such Non-Excluded Taxes or Other Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on a Lender or the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty a disallowance or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding reduction (including through the expiration of any United States federal income taxes is no longer properly entitled by law tax credit carryover or carryback of such refund or credit with respect to deliver forms, certificates or other evidence at a subsequent date establishing the fact that which such Lender is not subject to withholding. The Borrower will deliver promptly to or the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect has made a payment to payments made by the Borrower hereunder or under such other Loan Document.pursuant to this Section 6.2.2
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Il Fornaio America Corp)
No Offset, etc. (a) All payments by the Borrower or any Guarantor hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and and, except as provided in paragraph (c) below, free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, restrictions deductions or conditions withholdings of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) unless the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent Borrower or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the Borrower Guarantor is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower or any Guarantor with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will or such Guarantor will, except as provided in paragraph (c) below, pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholdingGuarantor. The Borrower or such Guarantor will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower or such Guarantor hereunder or under such other Loan Document.
(b) Each Lender and the Administrative Agent that is not a U.S. Person as defined in Section 7701(a)(30) of the Code hereby agrees that, if and to the extent it is legally able to do so, it shall, prior to the date of the first payment by the Borrower hereunder to be made to such Lender or the Administrative Agent or for such Lender's or the Administrative Agent's account, deliver to the Borrower and the Administrative Agent, as applicable, such certificates, documents or other evidence, as and when required by the Code or Treasury Regulations issued pursuant thereto, including two (2) duly completed copies of Internal Revenue Service Form W-8BEN or Form W-8ECI and any other certificate or statement of exemption required by Treasury Regulations, or any subsequent versions thereof or successors thereto, properly completed and duly executed by such Lender or the Administrative Agent establishing that with respect to payments of principal, interest or fees hereunder it is (i) not subject to United States federal withholding tax under the Code because such payment is effectively connected with the conduct by such Lender or Administrative Agent of a trade or business in the United States or (ii) totally exempt or partially exempt from United States federal withholding tax under a provision of an applicable tax treaty. Each Lender or Administrative Agent agrees that it shall, promptly upon a change of its lending office or the selection of any additional lending office, to the extent the forms previously delivered by it pursuant to this section are no longer effective, and promptly upon the Borrower's or the Administrative Agent's reasonable request after the occurrence of any other event (including the passage of time) requiring the delivery of a Form W-8BEN 51 -44- or Form W-8ECI in addition to or in replacement of the forms previously delivered, deliver to the Borrower and the Administrative Agent, as applicable, if and to the extent it is properly entitled to do so, a properly completed and executed Form W-8BEN or Form W-8ECI (or any successor forms thereto). Unless the Borrower and the Administrative Agent have received forms or other documents satisfactory to them indicating that such payments hereunder or under the other Loan Documents are not subject to the United States federal withholding tax, the Borrower or the Administrative Agent shall withhold taxes from such payments at the applicable statutory rate, or a reduced rate pursuant to an applicable tax treaty if such Lender has delivered a form evidencing such tax treaty benefit.
(c) Notwithstanding paragraph (a) above, neither the Borrower nor any Guarantor shall be required to pay any additional amounts to any Lender or the Administrative Agent for the account of the lending office of such Lender or Administrative Agent, pursuant to this Section 5.2.2, if (i) the obligation to pay such additional amounts would not have arisen but for a failure by such Lender or the Administrative Agent to comply with the provisions of subsection (b) above; (ii) the Lender or the Administrative Agent is not eligible, in respect of such lending office, for complete exemption from United States federal withholding tax with respect to payments of interest, principal or fees under this Credit Agreement or under any of the other Loan Documents, other than by reason of any change, after the Initial Date, of any applicable law, treaty or regulation by any governmental authority or other agency charged with the interpretation or administration thereof; or (iii) the tax is an income or franchise tax imposed on net income either by the jurisdiction under which such Lender or the Administrative Agent is organized or any political subdivision thereof or in which its principal office is located or by the jurisdiction of such Lender's or Administrative Agent's lending office or any political subdivision thereof. For purposes of this subsection (c), the term "INITIAL DATE" shall mean, with respect to any Lender or the Administrative Agent which is a party hereto on the Effective Date, and with respect to each assignee or transferee of any Lender, the date of the grant of the participation in, or transfer or assignment of an interest hereunder to such assignee or transferee.
Appears in 1 contract
Samples: Revolving Credit Agreement (Republic Technologies International Holdings LLC)
No Offset, etc. All (a) Subject to Section 5.2.3, all payments by the Borrower Borrowers hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxestaxes (including interest, penalties and additions to tax), levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) unless the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the Borrower is Borrowers are compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are imposed upon the Borrower Borrowers with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower Borrowers will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation Non-Excluded Taxes been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholdingBorrowers. The Borrower Borrowers will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or Borrowers under such other Loan Document.
(b) In addition, the Borrowers agree to pay to the relevant Governmental Authority in accordance with applicable law any current or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies (including, without limitation, mortgage recording taxes, transfer taxes and similar fees) imposed by the United States or any taxing authority thereof or therein that arise from any payment made hereunder ("Other Taxes").
(c) Subject to Section 5.2.3, the Borrowers agree to indemnify the Lenders and the Administrative Agent for the full amount of Non-Excluded Taxes (including additional amounts with respect thereto) and Other Taxes, and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, provided that the Lenders or the Administrative Agent, as the case may be, shall have provided the Borrowers with evidence, reasonably satisfactory to the Borrowers, of payment of Non-Excluded Taxes or Other Taxes, as the case may be.
(d) Any Lender or the Administrative Agent that becomes entitled to the payment of additional amounts pursuant to Section 5.2.2(a) or indemnification pursuant to Section 5.2.2(c) shall use reasonable efforts (consistent with applicable law) to file any document reasonably requested by the relevant Borrower or, if a Lender, to change the jurisdiction of its applicable lending office if the making of such a filing or change of office, as the case may be, would avoid the need for or reduce the amount of any payment of such additional amounts that may thereafter accrue and would not, in the good faith determination of such Lender or the Administrative Agent, as applicable, be disadvantageous to it.
(e) If a Lender or the Administrative Agent receives any refund with respect to taxes for which the Borrowers have paid any additional amounts pursuant to Section 5.2.2(a)U, then such Lender or the Administrative Agent, as applicable, shall promptly pay to the Borrowers the portion of the sum of such refund and any interest received with respect thereto as it determines, in its reasonable, good faith judgment, will leave it, after such payment, in no better or worse financial position than it would have been absent the imposition of such taxes and the payment of such additional amounts pursuant to Section 5.2.2(a)U; provided, however, that (i) the Borrowers agree to promptly return any amount paid to the Borrowers pursuant to this Section 5.2.2(d)U upon notice from such Lender or the Administrative Agent, as applicable, that such refund or any portion thereof is required to be repaid to the relevant taxing authority, (ii) nothing in this Section 5.2.2
Appears in 1 contract
No Offset, etc. All payments by the Borrower Borrowers hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) unless any of the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the Borrower Borrowers is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the a Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the such Borrower will make such deduction or withholding, will pay the full amount deducted or withheld to the applicable authority, and will also pay to the Administrative Agent, for the account of the Lenders or (as the case may be) ), the Administrative Issuing Bank, the applicable Fronting Bank or Banks or the Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders Lenders, the Issuing Bank, the applicable Fronting Bank or Banks or the Administrative Agent (as the case may be) to receive the same net amount in the same currency which the Lenders Lenders, the Issuing Bank, the applicable Fronting Bank or Banks or the Administrative Agent would have received on such due date had no such obligation been imposed upon the such Borrower; provided however that the . Each Borrower shall not be required to increase so affected will deliver, within thirty (30) days of any such amounts payable to any Lender deduction or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreementpayment, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the such Borrower hereunder or under such other Loan Document.. 49 -42-
Appears in 1 contract
No Offset, etc. (a) All payments by the Borrower Borrowers hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the unless a Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the a Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower Borrowers will pay to the Administrative Agent, for the account of the Lenders Banks or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders Banks or the Administrative Agent to receive the same net amount which the Lenders Banks or the Administrative Agent would have received on such due date had no such obligation been imposed upon such Borrower. Upon the Borrower; provided however that reasonable request of the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower Borrowers will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower Borrowers hereunder or under such other Loan Document.
(b) Each Bank that is not incorporated under the laws of the United States or a state thereof agrees that (to the extent it has not already done so prior to the Closing Date or the date on which such Bank becomes a Bank hereunder, as applicable) it will deliver to the Borrowers on the Closing Date or the date on which such Bank becomes a Bank hereunder, as applicable, two duly completed and accurate originals of a valid United States Internal Revenue Service Form 4224 or Form 1001 or any successor form thereto indicating that such Bank is entitled to receive payments under this Credit Agreement, including fees, without deduction or withholding of any United States federal income taxes. Subject to any change in applicable laws or regulations, such Bank undertakes to deliver to the Borrowers, upon request, two duly completed and accurate originals of Form 1001 or Form 4224, or successor form, on or before the date that any such form expires or becomes obsolete, indicating that such Bank is entitled to receive payments under this Credit Agreement without deduction or withholding of any United States federal income taxes.
Appears in 1 contract
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document. Each Lender claiming any additional amounts payable under this §5.2.2 agrees to use reasonable efforts (consistent with legal and regulatory restrictions) to execute and deliver all such documents and instruments as the Borrower shall reasonably request or to change the jurisdiction of its applicable lending office if the execution of such documents or the making of such a change would avoid the need for or substantially reduce the amount of additional amounts which would thereafter accrue and would not, in the sole and absolute determination of such Lender, be otherwise disadvantageous to such Lender, which determination by such Lender shall be conclusive. The Borrower shall not be liable to the Administrative Agent or any Lender (such person a "Recipient") for (i) taxes that are based upon or measured by such Recipient's (or a branch’s (in the case of a branch of such Recipient)) net income or net profit (including franchise Taxes imposed in lieu of such Taxes) or for any withholdings required to be made pursuant to applicable law that are credited against taxes based on such Recipient's net income or net profit, (ii) taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such taxes other than connections arising from such Recipient having executed this Loan Agreement and having enforced or enjoyed its rights and performed its obligations under this Loan Agreement or any of the other Loan Documents, (iii) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (A) such Lender acquires such interest in the Loan or Commitment or (B) such Lender changes its lending office, except in each case to the extent that, pursuant to this §5.2.2, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (iv) any U.S. federal withholding taxes imposed under FATCA and (v) taxes attributable to such Lender’s failure to provide the documentation required by Section 5.2.3.
Appears in 1 contract
No Offset, etc. All (a) Subject to Section 5.2, all payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, Taxes unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are imposed under applicable law upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders Lenders, or the Administrative Agent (as the case may be) in accordance with the Administrative Agentpriority of payments set forth in Section 3.2(a) or 3.2(b), on the date on which such amount is due and payable hereunder or under such other Loan Documentas applicable, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation Non-Excluded Taxes been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes Taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document.
(b) In addition, the Borrower agrees to pay to the relevant Governmental Authority in accordance with applicable law (or to reimburse the Administrative Agent or Lender for amounts paid by such Person), any current or future stamp or documentary Taxes, excise Tax, charges or similar levies (including, without limitation, mortgage recording Taxes, transfer Taxes and similar fees) imposed by the United States or any taxing authority thereof or therein that arise from any payment made hereunder (“Other Taxes”).
(c) Subject to Section 5.2, the Borrower agrees to indemnify the Lenders and the Administrative Agent for the full amount of Non-Excluded Taxes and Other Taxes paid by Lender or Administrative Agent, and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto (other than amounts arising from the gross negligence or willful misconduct of the Lenders or the Administrative Agent, as the case may be), provided that the Lenders or the Administrative Agent, as the case may be, shall have provided the Borrower with evidence, reasonably satisfactory to the Borrower, of payment of Non-Excluded Taxes or Other Taxes, as the case may be.
(d) Any Lender or the Administrative Agent that becomes entitled to the payment of additional amounts pursuant to Section 5.2.2(a) or indemnification pursuant to Section 5.2.2(c), shall use reasonable efforts (consistent with applicable law) to file any document reasonably requested by the Borrower or, with respect to a Lender, to change the jurisdiction of its applicable lending office if the making of such a filing or change of office, as the case may be, would avoid the need for or reduce the amount of any payment of such additional amounts that may thereafter accrue and would not, in the good faith determination of such Lender or the Administrative Agent, as applicable, be disadvantageous to it.
(e) If a Lender or the Administrative Agent receives any refund or credit with respect to Taxes for which the Borrower has paid any additional amounts pursuant to Section 5.2.2(a), then such Lender or the Administrative Agent, as applicable, shall promptly pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made under this Section) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, however, that (i) the Borrower agrees to promptly return any amount paid to the Borrower pursuant to this Section 5.2.2(e) upon notice from such Lender or the Administrative Agent, as applicable, that such refund or any portion thereof is required to be repaid to the relevant taxing authority, (ii) nothing in this Section 5.2.2
Appears in 1 contract
No Offset, etc. All payments by the any Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or unless such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the any Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the such Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholdingBorrowers. The Each Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the such Borrower hereunder or under such other Loan Document. Each Lender claiming any additional amounts payable under this §5.2.2 agrees to use reasonable efforts (consistent with legal and regulatory restrictions) to execute and deliver all such documents and instruments as the Borrowers shall reasonably request or to change the jurisdiction of its applicable lending office if the execution of such documents or the making of such a change would avoid the need for or substantially reduce the amount of additional amounts which would thereafter accrue and would not, in the sole and absolute determination of such Lender, be otherwise disadvantageous to such Lender, which determination by such Lender shall be conclusive. No Borrower shall be liable for taxes paid by the Administrative Agent or any Lender that are based upon the Administrative Agent’s or such Lender’s net income or for any withholdings required to be made pursuant to applicable law that are credited against taxes based on the Administrative Agent’s or such Lender’s net income.
Appears in 1 contract
Samples: Revolving Credit Agreement (CAI International, Inc.)
No Offset, etc. All payments by the Borrower Borrowers hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) unless any of the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the Borrower Borrowers is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the a Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the such Borrower will make such deduction or withholding, will pay the full amount deducted or withheld to the applicable authority, and will also pay to the Administrative Agent, for the account of the Lenders or (as the case may be) ), the Issuing Bank, the applicable Fronting Bank or Banks or the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders Lenders, the Issuing Bank, the applicable Fronting Bank or Banks or the Administrative Agent (as the case may be) to receive the same net amount in the same currency which the Lenders Lenders, the Issuing Bank, the applicable Fronting Bank or Banks or the Administrative Agent would have received on such due date had no such obligation been imposed upon the such Borrower; provided however that the . Each Borrower shall not be required to increase so affected will deliver, within thirty (30) days of any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver formspayment, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the such Borrower hereunder or under such other Loan Document.
Appears in 1 contract
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise other than taxes imposed based on (or measured by) the net income or profits of the Agent, the Issuing Bank or any Lender or Bank payable to the Administrative Agent by the jurisdictions under the laws of jurisdiction in which the Administrative Agent Agent, Issuing Bank or any Lender such Bank (or agency or branch thereof making the Loans, as the case may be) is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (Bbusiness) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders Banks, the Issuing Bank or the Agent (as the case may be) the Administrative Agent), on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders Banks, the Issuing Bank or the Administrative Agent to receive the same net amount which the Lenders Banks, the Issuing Bank or the Administrative Agent (as the case may be) would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Aviall Inc)
No Offset, etc. All Except as set forth below, all payments by the Borrower Borrowers hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) unless the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the Borrower is Borrowers are compelled by law to make such deduction or withholding (such non-excluded items referred to withholding. Except as “Non-Excluded Taxes”). If otherwise provided in this Section, if any such Non-Excluded Taxes are obligation is imposed upon the Borrower Borrowers with respect to any amount payable by it them hereunder or under any of the other Loan Documents, the Borrower Borrowers will pay to the Administrative Agent, Agent for the account of the Lenders or (of, as the case may be) , the applicable Lenders, L/C Issuer or the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders applicable Lenders, L/C Issuer or the Administrative Agent to receive the same net amount which the Lenders such Lenders, L/C Issuer or the Administrative Agent would have received on such due date had no such obligation been imposed upon the BorrowerBorrowers; provided however provided, that notwithstanding the Borrower foregoing, the Borrowers shall not be required to increase pay any such additional amounts payable to the Administrative Agent, any Lender or the Administrative Agent with respect to any such Non-L/C Issuer for Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholdingTaxes. The Borrower Borrowers will deliver promptly to the Administrative Agent Lenders and the L/C Issuer certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower Borrowers hereunder or under such other Loan Document.
Appears in 1 contract
Samples: Revolving Credit Agreement (Casella Waste Systems Inc)
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income income, franchise and franchise branch profits taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B"Excluded Taxes") any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-obligation (other than an Excluded Taxes are Tax) is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-obligation (other than an Excluded Taxes Tax) that are attributable to (i) such Administrative Agent’s 's or Lender’s 's failure to comply with the provisions of §6.3.3 ss.7.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s 's assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Documentss.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Emmis Communications Corp)
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, restrictions Indemnified Taxes or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, Other Taxes unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document. In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law. The Borrower shall indemnify the Administrative Agent and each Lender, within thirty (30) days after written demand therefor (which demand shall be accompanied by the certificate and/or other valid vouchers referred to above), for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 5.3.2) paid by the Administrative Agent or such Lender, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or by the Administrative Agent on its own behalf or on behalf of a Lender shall be conclusive absent manifest error.
Appears in 1 contract
Samples: Revolving Credit Agreement (Lexmark International Inc /Ky/)
No Offset, etc. All payments by the Borrower hereunder and --------------- under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding withholding. Subject to (such non-excluded items referred to as “Non-Excluded Taxes”). If S)3.3.3, if any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall . However, for this purpose, additional amounts will not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to include (i) such in the case of each Lender, each Liquidity Provider and the Administrative Agent’s , taxes measured by its net income and franchise taxes imposed on it by the jurisdiction (or Lender’s failure to comply with any political subdivision thereof) under the provisions laws of §6.3.3 or which it is organized and (ii) that are withholding in the case of each Lender and each Liquidity Provider, taxes measured by its net income and franchise taxes imposed on it by the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of jurisdiction in which its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes lending office is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholdinglocated. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document. If the Borrower incurs any costs with respect to any Lender by reason of this (S)3.3.2, the Borrower will have the right to replace such Lender in accordance with the provisions of (S)3.12 hereof.
Appears in 1 contract
Samples: Loan Agreement (Finova Group Inc)
No Offset, etc. (a) All payments by the Borrower Borrowers hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of unless any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the a Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the such Borrower will pay to the Administrative applicable Agent, for the account of the Lenders applicable Banks, the Issuing Bank or (as the case may be) the Administrative applicable Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars, Canadian Dollars or Australian Dollars (as applicable) as shall be necessary to enable the Lenders applicable Banks or the Administrative Agent to receive the same net amount which the Lenders applicable Banks or the Administrative Agent would have received on such due date had no such obligation been imposed upon the such Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Such Borrower will deliver promptly to the Administrative applicable Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the such Borrower hereunder or under such other Loan Document.
(b) On or before the date it becomes a party to this Credit Agreement and from time to time thereafter upon any change in status rendering any certificate or document previously delivered pursuant to this (S)6.2.2 invalid or inaccurate, each Bank that is organized under the laws of a jurisdiction outside the United States which makes US Loans shall (if legally able to do so) deliver to the US Borrower such certificates, documents or other evidence, as required by the Code or Treasury Regulations issued pursuant thereto, including Internal Revenue Service Form 1001 or Form 4224 or any applicable successor form or other applicable form pertaining to any such Bank and any other certificate or statement of exemption required by Treasury Regulation Section 1.1441-1, 1.1441-4 or 1.1441-6(c) or any subsequent version thereof or subsequent version thereto, properly completed and duly executed by such Bank establishing that such payment is (a) not subject to United States Federal withholding tax under the Code because such payment is effectively connected with conduct by such Bank of a trade or business in the United States or (b) totally exempt from United States Federal withholding tax or, if due to a change in law occurring after the date such Bank became a party hereto, subject to a reduced rate of such tax under a provision of an applicable tax treaty. The US Borrower shall not be required to pay any additional amounts to any Bank pursuant to this (S)6.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Genesee & Wyoming Inc)
No Offset, etc. All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction Barbados or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereoftherein, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) or taxing or other authority in any branch profits taxes imposed by jurisdiction from or through which the United States of America or Borrower effects any similar tax imposed by any other jurisdiction described in clause (A) above unlesspayments hereunder, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the Administrative Agent, for the account of the Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders or the Administrative Agent to receive the same net amount which the Lenders or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document. Each Lender claiming any additional amounts payable under this §5.2.2 agrees to use reasonable efforts (consistent with legal and regulatory restrictions) to execute and deliver all such documents and instruments as the Borrower shall reasonably request or to change the jurisdiction of its applicable lending office if the execution of such documents or the making of such a change would avoid the need for or materially reduce the amount of additional amounts which would be payable hereunder and would not, in the reasonable determination of such Lender, be otherwise materially disadvantageous to such Lender. No Borrower shall be liable under this §5.2.2 for or with respect to any taxes paid by the Administrative Agent or any Lender that are based upon the Administrative Agent’s or such Lender’s net income or for or with respect to any withholdings required to be made pursuant to applicable law that may be credited against taxes based on the Administrative Agent’s or such Lender’s net income.
Appears in 1 contract
No Offset, etc. (a) All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and and, except as provided in paragraph (c) below, free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, unless the Borrower is compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower with respect to any amount payable by it hereunder or under any of the other Loan Documents, the Borrower will will, except as provided in paragraph (c) below, pay to the Administrative Agent, for the account of the Lenders Banks or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the Lenders Banks or the Administrative Agent to receive the same net amount which the Lenders Banks or the Administrative Agent would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding. The Borrower will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower hereunder or under such other Loan Document.
(b) Each Bank and the Agent that is organized under the laws of a jurisdiction outside the United States hereby agrees that, if and to the extent it is legally able to do so, it shall, prior to the date of the first payment by the Borrower hereunder to be made to such Bank or the Agent or for such Bank's or the Agent's account, deliver to the Borrower and the Agent, as applicable, such certificates, documents or other evidence, as and when required by the Code or Treasury Regulations issued pursuant thereto, including two (2) duly completed copies of Internal Revenue Service Form 1001 or Form 4224 and any other certificate or statement of exemption required by Treasury Regulations, or any subsequent versions thereof or successors thereto, properly completed and duly executed by such Bank or the Agent establishing that with respect to payments of principal, interest or fees hereunder it is (i) not subject to United States federal withholding tax under the Code because such payment is effectively connected with the conduct by such Bank or Agent of a trade or business in the United States or (ii) totally exempt from United States federal withholding tax under a provision of an applicable tax treaty. Each Bank or Agent agrees that it shall, promptly upon a change of its lending office or the selection of any additional lending office, to the extent the forms previously delivered by it pursuant to this section are no longer effective, and promptly upon the Borrower's or the Agent's reasonable request after the occurrence of any other event (including the passage of time) requiring the delivery of a Form 1001 or Form 4224 in addition to or in replacement of the forms previously delivered, deliver to the Borrower and the Agent, as applicable, if and to the extent it is properly entitled to do so, a properly completed and executed Form 1001 or Form 4224 (or any successor forms thereto). Unless the Borrower and the Agent have received forms or other documents satisfactory to them indicating that such payments hereunder or under the other Loan Documents are not subject to the United States federal withholding tax, the Borrower or the Agent shall withhold taxes from such payments at the applicable statutory rate, or a reduced rate pursuant to an applicable tax treaty if such Bank has delivered a form evidencing such tax treaty benefit.
(c) Notwithstanding paragraph (a) above, the Borrower shall not be required to pay any additional amounts to any Bank or the Agent for the account of the lending office of such Bank or Agent, pursuant to this Section 5.2.2, if (i) the obligation to pay such additional amounts would not have arisen but for a failure by such Bank or the Agent to comply with the provisions of subsection (b) above; (ii) the Bank or the Agent is not eligible, in respect of such lending office, for complete exemption from United States federal withholding tax with respect to payments of interest, principal or fees under this Credit Agreement or under any of the other Loan Documents, other than by reason of any change, after the Initial Date, of any applicable law, treaty or regulation by any governmental authority or other agency charged with the interpretation or administration thereof; or (iii) the tax is an income or franchise tax imposed on net income either by the jurisdiction under
Appears in 1 contract
Samples: Revolving Credit Agreement (Republic Engineered Steels Inc)
No Offset, etc. All payments by the Borrower Borrowers hereunder and under any of the other Loan Documents shall be made without recoupment, setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein excluding (A) income and franchise taxes imposed on (or measured by) unless the net income or profits of any Lender or the Administrative Agent by the jurisdictions under the laws of which the Administrative Agent or any Lender is organized or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is located or any political subdivision thereof, or by the jurisdictions in which the Administrative Agent or such Lender is doing business or any political subdivision thereof and (B) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above unless, in each case, the Borrower is Borrowers are compelled by law to make such deduction or withholding (such non-excluded items referred to as “Non-Excluded Taxes”)withholding. If any such Non-Excluded Taxes are obligation is imposed upon the Borrower Borrowers with respect to any amount payable by it them hereunder or under any of the other Loan Documents, the Borrower Borrowers will pay to the Administrative Agent, for the account of the Lenders applicable Lenders, the Swingline Lender, the applicable Agent or (as the case may be) the Administrative Agentapplicable Issuing Bank, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars or the applicable Optional Currency as shall be necessary to enable such Lenders, the Lenders Swingline Lender, such Agent or the Administrative Agent such Issuing Bank to receive the same net amount which such Lenders, the Lenders Swingline Lender, such Agent or the Administrative Agent such Issuing Bank would have received on such due date had no such obligation been imposed upon the Borrower; provided however that the Borrower shall not be required to increase any such amounts payable to any Lender or the Administrative Agent with respect to any such Non-Excluded Taxes that are attributable to (i) such Administrative Agent’s or Lender’s failure to comply with the provisions of §6.3.3 or (ii) that are withholding taxes imposed on the amounts payable to such Administrative Agent or such Lender at the time such Administrative Agent or Lender becomes a party to this Credit Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such obligation pursuant to this §6.3.2; provided, further, that the foregoing shall not relieve the Borrower of its obligation to pay Non-Excluded Taxes in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in interpretation, administration or application thereof, a Non-U.S. Lender that was previously entitled to receive all payments under this Credit Agreement and any Note without deduction or withholding of any United States federal income taxes is no longer properly entitled by law to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholdingBorrowers. The Borrower Borrowers will deliver promptly to the Administrative Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrower Borrowers hereunder or under such other Loan Document.
Appears in 1 contract
Samples: Multicurrency Revolving Credit Agreement (Borders Group Inc)
