Payment of Additional Amounts. All payments made by the Guarantor under or with respect to the Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless the Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Guarantees, the Guarantor will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of: (a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder: (i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction; (ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof; (iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or (iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor; (b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein; (c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period; (d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes; (e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code; (f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities; (g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent; (h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended; (i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or (j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 12 contracts
Samples: Second Supplemental Indenture (ADT, Inc.), First Supplemental Indenture (ADT, Inc.), Third Supplemental Indenture (ADT, Inc.)
Payment of Additional Amounts. (a) All payments made by the Guarantor under Issuer or with the Guarantors in respect to of the Guarantees Notes and the Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, leviesassessments, imposts, assessments fees or other governmental charges of whatever nature (and any fines, penalties or interest related thereto) imposed or levied by or on behalf of the Cayman Islands or Brazil or, following any merger, consolidation, transfer, liquidation, winding-up, dissolution or assumption of obligations permitted hereunder, the jurisdiction in which the resulting, surviving or transferee Person is incorporated, resident for tax purposes or treated as engaged in business, or, in each case, any political subdivision thereof or taxing authority therein (each, a “Taxing Jurisdiction (“TaxesJurisdiction”), unless the Guarantor such withholding or deduction is required to withhold or deduct Taxes by law or by the interpretation or administration thereoflaw. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Guaranteesevent, the Issuer or a Guarantor will pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary so in order that every net payment made by the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities Issuer or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation Guarantor on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities each Note after deduction or withholding for or on account of:
(a) of any Taxes that are present or future tax, penalty, fine, duty, assessment or other governmental charge imposed upon or withheld solely because such holder or as a fiduciary, settler, beneficiary, or member result of such holder if payment by the Taxing Jurisdiction will not be less than the amount then due and payable on such holder is an estateNote. The foregoing obligation to pay Additional Amounts, trusthowever, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holderwill not apply to:
(i) is any tax, assessment or was present or engaged in, or is or was treated as present or engaged in, a trade or business in other governmental charge which would not have been imposed but for the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had existence of any present or former connection between such Holder (other than the mere fact of ownership or between a fiduciary, settlor, beneficiary, member or shareholder of such SecuritiesHolder, if such Holder is an estate, a trust, a partnership or a corporation) with or beneficial owner, on the one hand, and the Taxing Jurisdiction imposing Jurisdiction, on the other hand, including, without limitation, such TaxesHolder (or such fiduciary, including settlor, beneficiary, member or shareholder) or beneficial owner being or having been a citizen or resident thereof or being treated as being or having been engaged in a resident thereoftrade or business or present therein or having, or having had, a permanent establishment therein, but not including the mere receipt of such payment or the ownership or holding of such Note;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(bii) any estatetax, inheritance, gift, sales, transfer, excise assessment or personal property Taxes other governmental charge which would not have been so imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of but for the presentation of by such Securities Holder for payment (where presentation is required) for payment on a date more than 30 thirty calendar days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is occurs later, except to ;
(iii) the extent that the beneficiary taxes, duties, assessments or holder thereof other governmental charges would not have been entitled to the payment of Additional Amounts had the Securities been presented imposed but for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder Holder or any other person beneficial owner to comply with applicable any certification, information, documentation identification or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, the Holder if (a) such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling regulation or administrative practice other applicable law of the relevant such Taxing Authority Jurisdiction as a precondition to an exemption fromfrom all or a part of such tax, assessment or reduction in, the relevant Taxes, other governmental charge and (yb) at least 90 thirty calendar days prior to the first payment date with respect to on which the Issuer or each of the Guarantors applies this clause (iii) the Issuer or such Guarantor shall apply this paragraph, the Guarantor shall will have notified all Holders of Offered Securities in writing that they some or all Holders shall be required to provide comply with such declaration requirement;
(iv) any estate, inheritance, gift, sales, transfer or claim. personal property tax or similar tax;
(v) any tax, assessment or governmental charge payable other than by deduction or withholding from payments of principal or of interest on the Note; or
(vi) any combination of items (i) through (v) above.
(b) The Issuer or the Guarantors shall also pay any present or future stamp, court or documentary taxes or any other excise taxes, charges or similar levies which arise in any jurisdiction from the execution, delivery, registration or the making of payments in respect of the Notes, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside of any Taxing Jurisdiction other than those resulting from, or required to be paid in connection with, the enforcement of the Notes following the occurrence of any Default or Event of Default (each as defined below).
(c) No Additional Amounts also will not shall be payable paid with respect to any a payment on a Note or under the Guarantee to a Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company fiduciary or partnership or other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only payment to the extent that a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of such partnership or beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the receive payment of an the Additional Amount Amounts had the beneficiary, settlor, member or beneficial owner been the Holder.
(d) The Issuer or member received directly its beneficial or distributive share the Guarantors will provide the Trustee with the official acknowledgment of the payment. In additionrelevant taxing authority (or, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that if such acknowledgment is substantively comparablenot available, a certified copy thereof, if available) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of taxes in any Taxes so deducted Taxing Jurisdiction in respect of which the Issuer or withheld from each Taxing Authority imposing a Guarantor has paid any Additional Amounts. Copies of such Taxes. The Guarantor will, upon request, make documentation will be made available to the holders of Holders or the Offered SecuritiesPaying Agents, within 90 days after as applicable, upon request therefor.
(e) The Issuer or the date Guarantors will:
(i) at least ten Business Days prior to the payment of first Interest Payment Date for any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At Notes (and at least 30 days ten Business Days prior to each date on which succeeding Interest Payment Date or any payment under Redemption Date or Stated Maturity Date if there has been any change with respect to the Guarantees is due and payablematters set forth in the below-mentioned Officer’s Certificate), if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee and each Paying Agent an Officer’s Certificate stating (i) specifying the fact that such Additional Amounts will be payableamount, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders if any, of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever taxes described in this Indenture, Section 4.10 imposed or levied by or on behalf of any Taxing Jurisdiction (the Securities “Relevant Withholding Taxes”) required to be deducted or the Guarantees there is mentioned, in any context, withheld on the payment of principal or interest on the Notes to Holders and premiumthe Additional Amounts, if any, redemption pricedue to Holders in connection with such payment, interest and
(ii) certifying that the Issuer or any other amount payable under Guarantor will pay such deduction or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.withholding;
Appears in 11 contracts
Payment of Additional Amounts. All payments made by the Issuer or any Guarantor under on the Notes or with respect to the Guarantees any Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future taxestax, duties, levies, imposts, assessments assessment or other governmental charges of whatever nature and any penalties, interest or additions to tax with respect thereto (each a “tax”) imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”)the United States, unless the Guarantor withholding or deduction of such taxes is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof. In If any taxes imposed by the event that Guarantor is United States are required to so withhold be withheld or deduct any amount for or on account deducted in respect of any Taxes from any payment made under or with respect to the GuaranteesNotes or any Guarantee, the Issuer or applicable Guarantor will will, subject to the exceptions and limitations set forth below, pay such additional amounts (the “Additional Amountsadditional amounts”) as may be are necessary so in order that the net amount amounts received in respect of such payments by each holder of Securities (including Additional Amounts) Beneficial Owner who is not a United States Person, after such withholding or deduction by any applicable withholding agent (including any withholding or deduction in respect of such additional amounts) will equal the amount that such Holder amounts which would have been received if in respect of such Taxes had not been required to be withheld payments on any Note or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests Guarantee in the Offered Securities where absence of such holder is subject withholding or deduction; provided, however, that the foregoing obligation to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofpay additional amounts shall not apply:
(a) to any Taxes that are tax to the extent such tax is imposed by reason of the Holder (or withheld solely because the Beneficial Owner for whose benefit such holder Holder holds such note), or a fiduciary, settlersettlor, beneficiary, member or member stockholder of such holder the Holder if such holder the Holder is an estate, trust, partnership, limited liability company partnership or other fiscally transparent entitycorporation, or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
(i) is being or was present or having been engaged in, or is or was treated as present or engaged in, in a trade or business in the Taxing Jurisdiction United States or has having or having had a permanent establishment in the Taxing JurisdictionUnited States;
(ii) has having or having had any present or former other connection with the United States (other than a connection arising solely as a result of the mere fact of ownership of such Securities) with Notes, the Taxing Jurisdiction imposing such Taxesreceipt of any payment or the enforcement of any rights under the Notes or any Guarantee), including being or having been a citizen or resident thereof or being treated as being or having been a resident thereofof the United States;
(iii) with respect to any withholding Taxes imposed by the United States, is being or was with respect to the United States having been a personal holding company, a passive foreign investment company, company or a controlled foreign corporation, corporation for United States federal income tax purposes or a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax;
(iv) being or having been a “10-percent shareholder” of the Parent Guarantor as defined in section 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”); or
(ivv) owns being or owned 10% having been a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or more business, as described in section 881(c)(3)(A) of the total combined voting power of all classes of stock of the Company Code or the Guarantorany successor provisions;
(b) to any estateHolder that is not the sole Beneficial Owner of such Notes, inheritanceor a portion of such Notes, giftor that is a fiduciary, salespartnership or limited liability company, transfer, excise or personal property Taxes imposed but only to the extent that a Beneficial Owner with respect to the SecuritiesHolder, except as otherwise provided herein;
(c) any Taxes imposed solely as a result beneficiary or settlor with respect to the fiduciary, or a Beneficial Owner or member of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable partnership or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof limited liability company would not have been entitled to the payment of Additional Amounts an additional amount had the Securities been presented for payment on any date during such 30-day periodbeneficiary, settlor, Beneficial Owner or member received directly its beneficial or distributive share of the payment;
(dc) to any Taxes tax to the extent such tax would not have been imposed solely as a result of but for the failure of such holder the Holder or any other person the Beneficial Owner to comply with applicable certification, information, documentation identification or other information reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction United States of the Holder or Beneficial Owner of such holderNotes, if such compliance is required by statute or statute, by regulation of the relevant Taxing Jurisdiction United States or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to relief exemption from, or exemption from reduction of, such Taxestax, but only to the extent that the Holder or Beneficial Owner is legally eligible to provide such certification or other evidence;
(d) to any tax that is imposed otherwise than by withholding or deduction in respect of a payment on the Notes or any Guarantee;
(e) with respect to withholding Taxes imposed by the United Statesany estate, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) inheritance, gift, sales, transfer, wealth or 881(c) of the Codesimilar tax;
(f) to any Taxes that are payable by any method other than withholding or deduction by that is imposed on a payment to a Holder or Beneficial Owner and that is required to be made pursuant to any law implementing or complying with, or introduced in order to conform to, any European Union Directive on the Guarantor or the Company or any paying agent from payments in respect taxation of such Securitiessavings;
(g) to any Taxes tax required to be withheld by any paying agent from any payment in respect of principal of or interest on any Securities note, if such payment can be made without such withholding by at least one other paying agent;
(h) to any Taxes required to be deducted or withheld pursuant tax to the European Council Directive 2003/48/EC extent such tax would not have been imposed or levied but for the presentation by the Holder or Beneficial Owner of June 3any Note, 2003 where presentation is required, for payment on a date more than 30 days after the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive date on which payment became due and payable or the Luxembourg Law of December 23date on which payment thereof is duly provided for, 2005, as amendedwhichever occurs later;
(i) to any withholding tax to the extent such tax is imposed or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State withheld solely by reason of the European Union; orBeneficial Owner being a bank (i) purchasing such Notes in the ordinary course of its lending business or (ii) that is neither (1) buying such Notes for investment purposes only nor (2) buying such Notes for resale to a third-party that either is not a bank or holding such Notes for investment purposes only;
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes tax imposed or withheld pursuant to Sections under sections 1471 through 1474 of the Code as of the issue date (or any amended or successor provision that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to current section 1471(b) of the Code (or any amended or successor version that is substantively comparabledescribed above) and or any current fiscal or future regulations promulgated thereunder regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement (or related laws or official interpretations thereofadministrative practices) implementing the foregoing; or
(k) in the case of any combination of clauses (a) through (j) of this Section 4.6. The Guarantor will also (i) make such withholding Notes are subject in all cases to any tax, fiscal or deduction of Taxes and (ii) remit the full amount of Taxes so deducted other law or withheld regulation or administrative or judicial interpretation applicable to the relevant Taxing Jurisdiction Notes. Except as specifically provided under this Section 4.6, the Issuer (or any Guarantor, if applicable) will not be required to make any payment for any tax imposed by any government or a political subdivision or taxing authority of or in accordance with all applicable lawsany government or political subdivision. The Issuer or applicable Guarantor will shall use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes taxes so deducted or withheld from each Taxing Authority imposing withheld, or other evidence, and shall provide such Taxescopies or other evidence to the Trustee. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are Trustee shall not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver inquire as to the Trustee an Officer’s Certificate stating veracity of such receipt or other evidence. The foregoing obligations will survive any termination, defeasance or discharge of the fact that such Additional Amounts will be payable, the amounts so payable Indenture and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest Issuer or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofGuarantor.
Appears in 8 contracts
Samples: Thirteenth Supplemental Indenture (Celanese Corp), Eleventh Supplemental Indenture (Celanese Corp), Eighth Supplemental Indenture (Celanese Sales U.S. Ltd.)
Payment of Additional Amounts. All The Company, a Paying Agent, or any other Person on behalf of the Company, or any successor thereto (each, a “Payor”) shall make all payments made by in respect of the Guarantor under or with respect to the Guarantees will be made Securities free and clear of of, and without withholding or deduction for for, or on account of of, any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed (collectively, “Taxes”) imposed, collected, withheld, assessed or levied by or on behalf of any Taxing Jurisdiction jurisdiction in which the Payor is incorporated or tax resident, or any governmental authority or political subdivision thereof or therein having the power to tax (a “TaxesRelevant Jurisdiction”), unless the Guarantor withholding or deduction of the Taxes is required to withhold or deduct Taxes by law of any Relevant Jurisdiction. Where the withholding or deduction of Taxes is required by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct any amount for or on account law of any Taxes from any payment made under or with respect Relevant Jurisdiction, the Payor shall, subject to the Guaranteesexceptions and limitations set forth below, pay as additional interest on the Guarantor will pay Securities such additional amounts (“Additional Amounts”) as may be are necessary so that the net payment by the Company or a Paying Agent or other Payor of the principal of and interest on the Securities, after deduction for any present or future tax, assessment or governmental charge of a Relevant Jurisdiction, imposed by withholding with respect to the payment, shall not be less than the amount received by each holder that would have been payable in respect of the Securities (including Additional Amounts) after such had no withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required required. The Company’s obligation to be withheld or deducted; provided that no pay Additional Amounts will be shall not apply:
(1) to any Taxes that are only payable because a present or former type of connection exists or existed between the Holder or beneficial owner of the Securities and a Relevant Jurisdiction other than a connection related solely to purchase or ownership of Securities;
(2) to any Holder that is not the sole beneficial owner of the Securities, or a portion thereof, or that is a fiduciary or partnership, but only to the extent that the beneficial owner, a beneficiary or settlor with respect to the fiduciary, or a payment to a holder member of the Offered partnership would not have been entitled to the payment of an Additional Amount had such beneficial owner, beneficiary, settlor or member received directly its beneficial or distributive share of the payment;
(3) to any Taxes that are imposed or withheld because the beneficial owner or any other Person failed to accurately comply with a request from the Company or any Paying Agent to meet certification, identification or information reporting requirements concerning the nationality, residence or identity of the Holder or beneficial owner of Securities or to satisfy any information or reporting requirement, or to present the relevant Security (if certificated), if compliance such action is required as a holder of a beneficial interests in precondition to exemption from, or reduction in, such tax, assessment or other governmental charge by the Offered Securities where such holder is subject Relevant Jurisdiction;
(4) to taxation on such payment by a relevant Taxing Jurisdiction for any reason Taxes that are imposed other than such holder’s mere ownership of by withholding or deduction by the Offered Securities Company or for or on account of:a paying agent from the payment;
(a5) to any Taxes that are imposed or withheld solely because such holder or of a fiduciarychange in law, settler, beneficiaryregulation, or member of such holder if such holder is an estate, trust, partnership, limited liability company administrative or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, judicial interpretation that becomes effective after the day on which the payment becomes due or is or was treated as present or engaged induly provided for, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdictionwhichever occurs later;
(ii6) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, excise, transfer, excise or wealth, personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such similar Taxes;
(e7) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(gwhich term may include the Company) any Taxes required to be withheld by any paying agent must withhold from any payment in respect of principal of or interest on any Securities Security, if such payment can may be made without such withholding by at least one any other paying agent;
(h) 8) to any Taxes where withholding or deduction of such Taxes is imposed on a payment to an individual and is required to be deducted or withheld made pursuant to the European Union Council Directive 2003/48/EC of June 3, 2003 2003, European Union Council Directive 2014/48/EU of March 24, 2014, or any other European Union Directive on the taxation of savings income in the form of interest payments, payments implementing the conclusions of the ECOFIN (European Union Economic and Finance Ministers) Council Meeting of 26-27 November 2000 or any amendment thereofsubsequent Council Meeting amending or supplementing those conclusions, or any law implementing or complying with, or introduced in order to conform to, that Directive either or the Luxembourg Law both of December 23, 2005, as amendedthose Directives;
(i9) to any Taxes where withholding or deduction of such Taxes is imposed on a Security presented for Taxes which payment by or on behalf of a beneficial owner who would not have been imposed if able to avoid the withholding or deduction by presenting the relevant Securities had been presented global Security to another paying agent in a Member State member state of the European Union; or
(j10) in the case of any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the paymentabove items. In addition, no Additional Amounts will any amounts to be paid on account the Securities shall be paid net of any Taxes deduction or withholding imposed or withheld required pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and Code, any current or future regulations promulgated thereunder or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code, and no additional amounts shall be required to be paid on account of any such deduction or withholding. The Guarantor will also (i) make such withholding Securities are subject in all cases to any tax, fiscal or deduction of Taxes and (ii) remit the full amount of Taxes so deducted other law or withheld to the relevant Taxing Jurisdiction regulation or administrative or judicial interpretation applicable. Except as specifically provided in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted this Clause G or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receiptsin Clause H below, the same are Company does not obtainable, other evidence of such payments by Guarantor. At least 30 days prior have to each date on which make any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions terms of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or Security with respect to any Security, such mention shall be deemed Taxes imposed by any governmental authority or political subdivision having the power to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereoftax.
Appears in 6 contracts
Samples: Global Security Agreement (Fiat Chrysler Automobiles N.V.), Global Security Agreement (Fiat Chrysler Automobiles N.V.), Global Security Agreement (Fiat Chrysler Automobiles N.V.)
Payment of Additional Amounts. All If the Company merges or consolidates with, or sells or conveys substantially all of its assets to, a Foreign Successor (as permitted by Section 10.01 above), all payments made by the Guarantor such Foreign Successor under or with respect to the Guarantees Securities of any series will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any the jurisdiction of organization of such Foreign Successor (the “Taxing Jurisdiction (Jurisdiction”, and such amounts imposed or levied by or on behalf of the Taxing Jurisdiction, “Taxes”), unless the Guarantor such Foreign Successor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor a Foreign Successor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the GuaranteesSecurities of any series, the Guarantor Foreign Successor will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities of such series (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities of such series or a holder of a beneficial interests interest in the Offered Securities of such series where such holder is subject to taxation on such payment by a relevant the Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities of such series or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settlersettlor, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iviii) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the GuarantorForeign Successor;
(b) any estate, inheritance, gift, sales, transfer, excise or excise, personal property or similar Taxes imposed with respect to the Securities, except as otherwise provided hereinSecurities of such series;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities of such series been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of any connection between such holder to fulfill and the statement requirements of sections 871(h) or 881(c) Taxing Jurisdiction (other than connections arising solely from such holder’s ownership of the CodeSecurities);
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company Foreign Successor or any paying agent from payments in respect of such Securities, and any backup withholding Taxes;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities of such series if such payment can be made without such withholding by at least one other paying agent;; or
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(aSections 11.02(a), (b), (c), (d), (e), (f), (g), (h) and (ig). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered a Security of any series if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered a Security of such series to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor Foreign Successor shall apply this paragraph, the Guarantor Foreign Successor shall have notified all Holders of Offered all Securities of any series in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered a Security of any series that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests interest of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees Securities of a series is due and payable, if the Guarantor a Foreign Successor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor Foreign Successor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities of such series on the payment date. If the Trustee does not receive such Officer’s Certificate, it shall be fully protected in assuming that no such Additional Amounts are payable. The provisions of this Article II XI shall survive any termination of or the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor Foreign Successor (or any successor Person to the Guarantor Foreign Successor if such successor is not organized under the laws of the United States or any state of the United States) is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor Foreign Successor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor Foreign Successor shall be substituted for the date on which the Offered Securities was of such series were issued. Whenever in this Indenture, the Securities or the Guarantees there is of any series are mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 5 contracts
Samples: Indenture (ADT, Inc.), Indenture (ADT, Inc.), Indenture (ADT Corp)
Payment of Additional Amounts. All payments made by the Guarantor under or (a) The Company shall pay any amounts due with respect to the Guarantees will be made free Securities without deduction or withholding for any and clear of all present and without future withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental imposts and charges of whatever nature (a “withholding tax”) imposed or levied by or on behalf for the account of the United States of America, the State of Delaware or any other jurisdiction in which the Company is a resident for tax purposes or any political subdivision or taxing authority of such jurisdiction (the “Taxing Jurisdiction (“TaxesJurisdiction”), unless the Guarantor such withholding or deduction is required by law. If such deduction or withholding is at any time required, the Company will, to withhold or deduct Taxes the fullest extent allowed by law or (subject to compliance by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct holder of a Security with any amount for or on account of any Taxes from any payment made under or with respect to the Guaranteesrelevant administrative requirements), the Guarantor will pay such additional amounts (the “Additional Amounts”) in respect of principal amount, redemption price and interest (if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so that the net amount received by each amounts paid to the holder of Securities (including Additional Amounts) or the Trustee after such deduction or withholding or deduction will equal the amount that such Holder would have received principal amount, redemption price and interest (if such Taxes had any), on the Securities. However, the Company will not been required to be withheld or deducted; provided that no pay any Additional Amounts will in the following instances:
(i) if any withholding would not be payable with respect to a payment to a holder of or due but for the Offered Securities or a fact that (i) the holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
Security (a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settlersettlor, beneficiarybeneficiary of, member or member of such holder shareholder of, the holder, if such the holder is an estate, trust, partnershippartnership or corporation) is a domiciliary, limited liability company national or other fiscally transparent entityresident of, or engaging in business or maintaining a person holding a power over an estate permanent establishment or trust administered by a fiduciary holder:
(i) is or was being physically present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any otherwise having some present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being other than solely the holding or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more ownership of the total combined voting power Security or the collection of all classes of stock principal amount, redemption price, repurchase price and interest (if any), in accordance with the terms of the Company Securities and this Indenture, or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result enforcement of the presentation of such Securities Security or (ii) where presentation is required) for payment on a date , the Security was presented more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly was provided for, whichever is later, except ;
(ii) if and to the extent that the beneficiary or withholding tax is pursuant to the law in effect at the time the holder thereof would have been acquires Securities and the assignor to the holder was not entitled to the payment of such Additional Amounts had at the Securities been presented for payment on any date during such 30-day periodtime of the holder’s acquisition;
(diii) if any Taxes withholding tax would not have been imposed solely as a result of but for the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holderSection 12.01(c), if such compliance is required by statute or by regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxeswithholding tax and such holder or beneficial owner is legally able to so comply;
(eiv) with respect to if any withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding tax or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes is required to be withheld by any paying agent from any payment made in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3tax, 2003 on the taxation of savings income in the form of interest paymentsduty, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence assessment or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes governmental charge imposed or withheld pursuant to Sections 1471 through 1474 of the Code Code, as of the date hereof (or any amended or successor version that is substantively comparable) and any version), current or future regulations promulgated U.S. Treasury Regulations issued thereunder or any official interpretations interpretation thereof. The Guarantor will also , any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (ihereinafter “FATCA”); or
(v) make such withholding or deduction any combination of Taxes and the instances described in the preceding clauses.
(iib) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment If a holder receives a refund of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available taxes as to which the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due Company has paid Additional Amounts pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with this Section 12.01 (including in respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts pursuant to this Section 12.01), such holder shall pay to the extent thatCompany an amount equal to such refund, net of all out of pocket expenses (including taxes) of the holder and without interest (other than any interest paid by the relevant governmental authority with respect to such refund). The Company shall repay to the holder the amount paid over pursuant to this clause (b) (plus any penalties, interest, or other charges imposed by the relevant governmental authority) in the event that the holder is required to repay such context, Additional Amounts are, were or would be payable in respect thereofrefund to such governmental authority.
Appears in 4 contracts
Samples: Indenture (Mbia Inc), Subordinated Indenture (Mbia Inc), Indenture (Mbia Inc)
Payment of Additional Amounts. (a) All payments made of principal and interest in respect of the Securities, the Note Indenture and the Guarantee by or for the account of the Company or any Guarantor under or with respect to the Guarantees will shall be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or on behalf of Mexico, the Netherlands, the British Virgin Islands or in the event the Company or any Guarantor appoints additional paying agents, by the jurisdictions of such additional paying agents (each a “Note Taxing Jurisdiction Jurisdiction”), or any political subdivision thereof or any authority therein or thereof (“Applicable Taxes”), unless except to the Guarantor is extent that such Applicable Taxes are required by a Note Taxing Jurisdiction or any such political subdivision or authority to withhold be withheld or deduct Taxes by law or by the interpretation or administration thereofdeducted. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from withholding or deduction for any payment made under or with respect to the GuaranteesApplicable Taxes, the Guarantor will Company and the Guarantors shall pay such additional amounts (“Additional Amounts”) as may be necessary so that will result in receipt by the net amount Holders of Securities on the respective due dates of such amounts as would have been received by each holder of Securities (including Additional Amounts) after them had no such withholding or deduction will equal the amount that such Holder would have received if such (including for any Applicable Taxes had not payable in respect of Additional Amounts) been required to be withheld or deducted; provided required, except that no such Additional Amounts will shall be payable with respect to any payment on a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holderSecurity:
(i) is to the extent that such taxes or was present duties are imposed or engaged in, levied by reason of such holder (or is or was treated as present or engaged in, a trade or business in the beneficial owner) having some connection with the Note Taxing Jurisdiction other than the mere holding (or has or had a permanent establishment in the Taxing Jurisdictionbeneficial ownership) of such Securities;
(ii) has to the extent that such taxes or had any present duties are imposed on, or former connection measured by, net income of the holder (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereofbeneficial owner);
(iii) with in respect to any withholding Taxes imposed by of which the United States, is holder (or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(ivbeneficial owner) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person fails to comply with applicable any certification, information, documentation identification or other reporting requirements requirement concerning the its nationality, residence, identity or connection with the Note Taxing Jurisdiction of such holder, if such (1) compliance is required by statute applicable law, regulation, administrative practice or regulation of the relevant Taxing Jurisdiction treaty as a precondition to relief or exemption from all or a part of the taxes, (2) the holder (or beneficial owner) is able to comply with those requirements without undue hardship and (3) the Company has given all holders at least 30 days’ prior notice that they will be required to comply with such Taxesrequirements;
(eiv) with in respect of which the holder (or beneficial owner) fails to withholding Taxes imposed by surrender (where surrender is required) its Securities for payment within 30 days after the United StatesCompany has made available a payment of principal or interest, provided that the Company will pay Additional Amounts to which a holder would have been entitled had the Securities been surrendered on any day (including the last day) within such Taxes 30-day period;
(v) to the extent that such taxes or duties are imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) an estate, inheritance, gift, value added, use or 881(c) of the Codesales tax or any similar taxes, assessments or other governmental charges;
(fvi) any Taxes that are payable by any method other than where such withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes is imposed on a payment to an individual and is required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the any European Council Union Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in implementing the form conclusions of interest payments, or any amendment thereof, the ECOFIN Council meeting of 26-27 November 2000 or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;such Directive; or
(ivii) any by or on behalf of a holder who would have been able to avoid such withholding or deduction for Taxes which would not have been imposed if by presenting the relevant Securities had been presented to another paying agent in a Member State member state of the European Union; or
. The Company shall provide the Trustee, as soon as practicable, with documentation (jwhich may consist of certified copies of such documentation) satisfactory to the Trustee evidencing the payment of Applicable Taxes in respect of which the Company has paid any combination Additional Amounts. Copies of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not such documentation shall be payable made available to or for the account Holders of any Holder the Securities or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residencePaying Agent, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statuteapplicable, treaty, regulation, ruling or administrative practice upon request therefor. In respect of the relevant Taxing Authority as a precondition to an exemption fromSecurities issued hereunder, or reduction in, the relevant Taxes, and (y) at least 90 days five Business Days prior to the first date of payment date with respect of interest on the Securities and at least five Business Days prior to which the Guarantor shall apply this paragrapheach date, the Guarantor shall have notified all Holders if any, of Offered Securities in writing that they shall be required to provide such declaration payment of principal or claim. Additional Amounts also will not be payable to interest thereafter if there has been any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor change with respect to the fiduciarymatters set forth in the below mentioned Officers’ Certificate, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled Company shall furnish the Trustee and each Paying Agent with an Officers’ Certificate instructing the Trustee and such Paying Agent as to the whether such payment of an Additional Amount had the beneficiary, settlor, beneficial owner principal of or member received directly its beneficial any interest on such Securities shall be made without deduction or distributive share of the payment. In addition, no Additional Amounts will be paid withholding for or on account of any Taxes imposed tax, duty, assessment or withheld pursuant to Sections 1471 through 1474 other governmental charge. If any such deduction or withholding shall be required by Mexico or under the federal laws of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make United States, then such withholding or deduction of Taxes and (ii) remit certificate shall specify, by country, the full amount of Taxes so amount, if any, required to be deducted or withheld on such payment to Holders of such Securities, and the Company shall pay or cause to be paid to the relevant Taxing Jurisdiction in accordance with all applicable lawsTrustee or such Paying Agent Additional Amounts, if any, required by this Section 1007. The Guarantor will use its commercially reasonable efforts Company agrees to obtain certified copies indemnify the Trustee and each Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of tax receipts evidencing or in connection with actions taken or omitted by them in reliance on any Officers’ Certificate furnished pursuant to this Section 1007.
(b) The Company and the payment Guarantors shall pay all stamp and other duties, if any, which may be imposed by Mexico, the United States of America, the Netherlands or any Taxes so deducted other applicable jurisdiction or withheld from each Taxing Authority imposing such Taxes. The Guarantor willany other governmental entity or political subdivision therein or thereof, upon request, make available to the holders or any taxing authority of or in any of the Offered Securitiesforegoing, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such paymentNote Indenture, the Guarantor will deliver Guarantee or the issuance of the Securities.
(c) The Company shall provide each Paying Agent and any withholding agent under relevant tax regulations with copies of each certificate received by the Company from a Holder of a Security pursuant to the Trustee an Officer’s Certificate stating the fact that text of such Additional Amounts will be payableSecurity. Each such Paying Agent and withholding agent shall retain each such certificate received by it for as long as any Security is Outstanding and in no event for less than four years after its receipt, the amounts so payable and will for such additional period thereafter, as set forth in an Officers’ Certificate, as such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders certificate may become material in the administration of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for applicable tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever laws.
(d) All references in this Note Indenture, the Securities and the Guarantee to principal or the Guarantees there is mentioned, interest in respect of any context, the payment of principal Security shall be deemed to mean and premiuminclude all Additional Amounts, if any, redemption pricepayable in respect of such principal or interest, interest or any other amount payable under or with respect to any Securityunless the context otherwise requires, such mention shall be deemed to include and express mention of the payment of Additional Amounts in any provision hereof or thereof shall not be construed as excluding reference to the extent that, in such context, Additional Amounts arein those provisions hereof and thereof where such express mention is not made. All references in this Note Indenture, were or would the Securities and the Guarantee to principal in respect of any Security shall be deemed to mean and include any Redemption Price payable in respect thereofof such Security pursuant to any redemption hereunder (and all such references to the Stated Maturity of the principal in respect of any Security shall be deemed to mean and include the Redemption Date with respect to any such Redemption Price), and all such references to principal, interest or Additional Amounts shall be deemed to mean and include any amount payable in respect thereof pursuant to Section 1010, and express mention of the payment of any Redemption Price, or any such other amount, in those provisions hereof and thereof shall not be construed as excluding reference to the Redemption Price or any such other amount in those provisions hereof and thereof where such express reference is not made.
Appears in 4 contracts
Samples: Note Indenture (Cemex Sab De Cv), Note Indenture (Cemex Sab De Cv), Note Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. (a) All payments made by the Guarantor under or of principal of and premium, if any, and interest, if any, on all Securities and, with respect to any series of Securities to which the Guarantees will provisions of Article Fifteen shall apply, the Guarantee shall be made free and clear of and without withholding or deduction for or on account of any present or future taxesincome, dutiesstamp or other tax, leviesduty, impostslevy, assessments impost, assessment or other governmental charges charge of whatever any nature whatsoever imposed or levied by or on behalf of the government of a Home Country Jurisdiction, any Taxing territory of a Home Country Jurisdiction or any authority or agency therein or thereof having the power to tax (collectively, “Taxes”), unless except to the Guarantor is extent such Taxes are required to withhold be withheld or deduct Taxes deducted by law or by the interpretation or administration thereof. In If the event that Guarantor Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, is so required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or in respect of the Securities or, with respect to the Guaranteesany series of Securities to which provisions of Article Fifteen shall apply, the Guarantor will Guarantee, the Company or the Guarantor, as applicable, shall pay such additional amounts (“Additional Amounts”) as may be necessary so such that the net amount received by each holder of Securities beneficial owner (including such Additional Amounts) ), after such withholding or deduction will equal deduction, shall not be less than the amount that such Holder beneficial owner would have received if such the Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofTaxes:
(a1) that would not have been imposed but for the existence of any Taxes that are imposed present or withheld solely because former connection between such holder Holder or beneficial owner of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (or between a fiduciary, settlersettlor, beneficiary, member or member shareholder of, or possessor of a power over, such holder Holder or beneficial owner, if such holder Holder or beneficial owner is an estate, trust, partnershippartnership or corporation), limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing and such Home Country Jurisdiction or has any political subdivision or had a permanent establishment in the Taxing Jurisdiction;
territory or possession thereof or therein or area subject to its jurisdiction, including, without limitation, such Holder or beneficial owner (iior such fiduciary, settlor, beneficiary, member, shareholder or possessor) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as a resident thereof or domiciled thereof or a national thereof or being or having been present or engaged in trade or business therein or having or having had a resident thereofpermanent establishment therein;
(iii2) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any are estate, inheritance, gift, sales, transfer, excise personal property, wealth or personal property Taxes imposed similar taxes, duties, assessments or other governmental charges;
(3) payable other than by withholding from payments of principal of and premium, if any, or interest, if any, on the Securities or, with respect to any series of Securities to which the Securitiesprovisions of Article Fifteen shall apply, except as otherwise provided hereinthe Guarantee;
(c4) that would not have been imposed but for the failure of the applicable recipient of such payment to comply with any Taxes imposed solely certification, identification, information, documentation or other reporting requirement to the extent:
(i) such compliance is required by applicable law or administrative practice or an applicable treaty as a result precondition to exemption from, or reduction in, the rate of deduction or withholding of such Taxes; and
(ii) at least thirty (30) days before the first payment date with respect to which such Additional Amounts shall be payable, the Company or the Guarantor, as the case may be, shall have notified such recipient in writing that such recipient shall be required to comply with such requirement;
(5) that would not have been imposed but for the presentation of such Securities a Security or, as applicable, the Guarantee (where presentation is required) for payment on a date more than 30 thirty (30) days after the date on which such payment became due and payable or the date on which payment thereof is was duly provided for, whichever is occurred later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d6) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes imposed on a payment and are required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereofother directive amending, supplementing or replacing such directive, or any law implementing or complying with, or introduced in order to conform to, that Directive such directive or the Luxembourg Law of December 23, 2005, as amendeddirectives;
(i7) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes are imposed or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), as of the issue date of the Securities (or any amended or successor version that is substantively comparable) and of such sections), any current or future regulations promulgated thereunder or thereunder, any official interpretations thereof. The Guarantor will also (i) make such withholding , any similar law or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due regulation adopted pursuant to applicable law, certified copies of tax receipts evidencing such payment by an intergovernmental agreement between a non-U.S. jurisdiction and the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or United States with respect to the Guarantees is due and payableforegoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code;
(8) that would not have been imposed if presentation for payment of the relevant Securities or, if the Guarantor will be obligated to pay Additional Amounts with respect to such paymentany series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor will deliver Guarantee, had been made to a paying agent other than the Trustee an Officer’s Certificate stating paying agent to which the fact that such presentation was made; or
(9) any combination of the foregoing clauses (1) through (8); nor shall Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis paid with respect to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and of or premium, if any, redemption priceor interest, interest or if any, on any other amount payable under or Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee, to any such Holder or beneficial owner who is a fiduciary or a partnership or a beneficial owner who is other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such Additional Amounts had it been the Holder of the Security.
(b) All references in this Indenture, such mention other than in Articles Twelve or Thirteen, to the payment of the principal of or premium, if any, or interest, if any, on or the net proceeds received on the sale or exchange of, any Securities or as applicable, with respect to the Guarantee, shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such that context, Additional Amounts are, were or would be payable payable.
(c) The Company shall maintain, in respect of Securities of each series outstanding, at least one paying agent located outside the United Kingdom. In the event that a paying agent with respect to Securities of a particular series is maintained in any member state of the European Union, the Company shall maintain a paying agent in at least one member state that will not be obliged to withhold or deduct taxes pursuant to European Council Directive 2003/48/EC or any other directive amending, supplementing or replacing such directive or any law implementing or complying with, or introduced in order to conform to such directive or directives, provided there is at least one member state that does not require a paying agent to withhold or deduct pursuant to such directive.
(d) The obligations of the Company and, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, to pay Additional Amounts if and when due will survive the termination of this Indenture and the payment of all other amounts in respect of the Securities.
(e) If, as a result of any consolidation, merger, conversion, conveyance, transfer or lease of the properties and assets of the Company or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantor, substantially as an entirety in accordance with Section 11.01, the successor Person formed by such consolidation, merger, or conversion, or to which such conveyance, transfer or lease is made is not organized under the laws of a Home Country Jurisdiction (or, in each case, any political subdivision or taxing authority thereof), such successor Person will pay Additional Amounts on the same basis set forth in this Section 4.05, except that references to “Home Country Jurisdiction” will be treated as references to both the Home Country Jurisdictions at the issue date of the Securities of such series and the country in which such successor Person is organized or resident (or deemed resident for tax purposes).
Appears in 4 contracts
Samples: Indenture (Aon Corp), Indenture (Aon Corp), Indenture (Aon Corp)
Payment of Additional Amounts. All Except to the extent otherwise specified with respect to a particular series of Securities, all payments of principal of and premium, if any, interest and any other amounts on, or in respect of, the Securities of any series shall be made by the Guarantor under or with respect to the Guarantees will be made free and clear of and Issuer without withholding or deduction for at source for, or on account of of, any present or future taxes, fees, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of The Netherlands, or the jurisdiction of residence or incorporation of any successor to the Issuer, or any political subdivision or taxing authority thereof or therein (the “Taxing Jurisdiction (“TaxesJurisdiction”), unless the Guarantor is such taxes, fees, duties, assessments or governmental charges are required to withhold be withheld or deduct Taxes deducted by law (i) the laws (or any regulations or ruling promulgated thereunder) of a Taxing Jurisdiction or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including, without limitation, a holding by a court of competent jurisdiction or by a taxing authority in a Taxing Jurisdiction). If a withholding or deduction at source is required, the interpretation or administration thereof. In Issuer shall, subject to certain limitations and exceptions set forth below, pay to the event that Guarantor is required to so withhold or deduct any amount for or on account Holder of any Taxes from any payment made under or with respect to the Guarantees, the Guarantor will pay such Security such additional amounts (“Additional Amounts”) as may be necessary so that the every net payment of principal, premium, if any, interest or any other amount received by each holder of Securities (including Additional Amounts) made to such Holder, after such withholding or deduction will equal deduction, shall not be less than the amount provided for in such Security, and this Indenture to be then due and payable; provided, however, that such Holder would have received if such Taxes had the Issuer shall not been be required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a make payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or additional amounts for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciarytax, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company assessment or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
governmental charge that would not have been so imposed but for (i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder, if such Holder is an estate, a trust, a partnership or a corporation) and The Netherlands and its possessions or any other than the mere fact of ownership of Taxing Jurisdiction, including, without limitation, such SecuritiesHolder (or such fiduciary, settlor, beneficiary, member or shareholder) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as thereof, being or having been engaged in a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United Statestrade or business or present therein or having, is or was with respect to the United States a personal holding companyhaving had, a passive foreign investment companypermanent establishment therein or (ii) the presentation, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) , by the Holder of a Security for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(b) any capital gain, estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(c) any tax assessment or other governmental charge that is later, except payable otherwise than by withholding from payments on or with respect to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day periodSecurities;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation tax assessment or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance governmental charge that is required by statute or regulation of the relevant Taxing Jurisdiction as imposed on a precondition payment to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes an individual and that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes is required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC or any other directive implementing the conclusions of June 3the ECOFIN council meeting of November 26 – 27, 2003 2000 on the taxation of savings income in the form of interest payments, or any amendment thereofincome, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amendedsuch directives;
(ie) any tax assessment or other governmental charge required to be withheld by any paying agent from any payment of principal or other amounts payable, or interest on the Securities, to the extent that such payment can be made without such withholding by presentation of the Securities to any other paying agent;
(f) any tax, assessment or deduction for Taxes which would not have been other governmental charge that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of such Security to comply with any reasonable request by the Issuer addressed to the Holder or, if different, the direct nominee of a beneficiary of the payment, within 90 days of such request (A) to provide information or certification concerning the nationality, residence or identity of the Holder or such beneficial owner or (B) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (A) or (B), is required or imposed by statute, treaty, regulation or administrative practice of the relevant Securities had been presented Taxing Jurisdiction as a precondition to another paying agent in a Member State exemption from all or part of the European Unionsuch tax, assessment or other governmental charge; or
(jg) any combination of Section 3.02(aitems (a), (b), (c), (d), (e), ) and (f); nor shall additional amounts be paid with respect to any payment of the principal of, (g)or premium, (h) and (i). Additional Amounts will not be payable if any, interest or any other amounts on, any such Security to or for the account of any Holder who is a fiduciary, a partnership or any other Person, other than the holder sole beneficial owner of a beneficial interest in an Offered such Security if to the extent such payment would not be subject to such withholding or deduction of Taxes but for required by the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice laws of the relevant Taxing Authority as a precondition Jurisdiction to an exemption from, or reduction in, be included in the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder income for tax purposes of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company beneficiary or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary partner or settlor with respect to the fiduciary, such fiduciary or a member of such partnership or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, who would not have been entitled to such additional amounts had it been the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share Holder of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issuedSecurity. Whenever in this Indenture, the Securities or the Guarantees Indenture there is mentioned, in any context, the payment of the principal and of or any premium, if any, redemption price, interest or any other amount payable under amounts on, or with in respect to of, any SecuritySecurity of any series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts additional amounts provided by the terms of such series established hereby or pursuant hereto to the extent that, in such context, Additional Amounts additional amounts are, were or would be payable in respect thereofthereof pursuant to such terms, and express mention of the payment of additional amounts (if applicable) in any provision hereof shall not be construed as excluding the payment of additional amounts in those provisions hereof where such express mention is not made. Except as otherwise provided in or pursuant to this Indenture or the Securities of the applicable series, at least 10 days prior to the first interest payment date with respect to a series of Securities (or if the Securities of such series shall not bear interest prior to Maturity, the first day on which a payment of principal is made), and at least 10 days prior to each date of payment of principal or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Issuer shall furnish to the Trustee, the Securities Administrator and the principal paying agent, if other than the Securities Administrator, an Officers’ Certificate instructing the Trustee, the Securities Administrator and such paying agent whether such payment of principal of and premium, if any, interest or any other amounts on the Securities of such series shall be made to Holders of Securities of such series without withholding for or on account of any tax, fee, duty, assessment or other governmental charge described in this Section 3.07. If any such withholding shall be required, then such Officers’ Certificate shall specify by Taxing Jurisdiction the amount, if any, required to be withheld on such payments to such Holders of Securities, and the Issuer agrees to pay to the Trustee, the Securities Administrator or such paying agent the additional amounts required by this Section 3.07. The Issuer covenants to indemnify the Trustee, the Securities Administrator and any paying agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section 3.07.
Appears in 3 contracts
Samples: Indenture (Royal Bank of Scotland Group PLC), Indenture (Abn Amro Bank Nv), Indenture (Abn Amro Bank Nv)
Payment of Additional Amounts. All payments made by Parent or the Guarantor Company under or with respect to the Securities and the Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless Parent or the Guarantor Company, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor Parent or the Company is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Securities or the Guarantees, as the Guarantor case may be, Parent or the Company, as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Global Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company Parent or the GuarantorCompany;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor Parent or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a14.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered a Global Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered a Global Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 60 days prior to the first payment date with respect to which Tyco or the Guarantor Company shall apply this paragraph, Tyco or the Guarantor Company shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered a Global Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In additionParent or the Company, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of as the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor case may be, will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor Parent or the Company, as applicable, will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor Parent or the Company, as the case may be, will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by Parent or the Guarantor Company or if, notwithstanding GuarantorParent’s or the Company’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by GuarantorParent or the Company. At least 30 days prior to each date on which any payment under or with respect to the Securities or Guarantees is due and payable, if Parent or the Guarantor Company will be obligated to pay Additional Amounts with respect to such payment, Parent or the Guarantor Company will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. In addition, the Company will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in Luxembourg or the United States or any political subdivision or taxing authority of or in the foregoing in respect of the creation, issue, offering, enforcement, redemption or retirement of the Securities. The provisions of this Article II XIV shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which Parent or the Guarantor Company or any successor Person to Parent or the Guarantor Company, as the case may be, is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which Parent or the Guarantor Company changes its jurisdiction in which it is organized or such Person becomes a successor to Parent or the Guarantor Company, as the case may be, shall be substituted for the date on which the Offered series of Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 3 contracts
Samples: Indenture (Tyco International Finance S.A.), Indenture (Tyco International LTD /Ber/), Indenture (Tyco International Finance S.A.)
Payment of Additional Amounts. (a) All payments made by the Guarantor Company under or with respect to the Guarantees Securities or by a Guarantor with respect to a Guarantee, will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxestax, dutiesduty, levieslevy, impostsassessment or other governmental charge, assessments including any related interest, penalties or governmental charges additions to tax (“Taxes”) unless the withholding or deduction of whatever nature such Taxes is then required by law or by interpretation or administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of (i) any Taxing Jurisdiction jurisdiction in which the Company, or the applicable Guarantor, is then incorporated, organized or resident for tax purposes or any political subdivision thereof or therein (each, a “TaxesCompany Tax Jurisdiction”)) or (ii) any jurisdiction from or through which payment is made by or on behalf of the Company, unless or a Guarantor (including the Guarantor is jurisdiction of any paying agent for the applicable series of Securities) or any political subdivision thereof or therein (each, together with each Company Tax Jurisdiction, a “Tax Jurisdiction”) will at any time be required to withhold or deduct Taxes by law or be made from any payments made by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made Company under or with respect to the Guaranteesapplicable series of Securities or a Guarantor under or with respect to the applicable Guarantee, including payments of principal, redemption price, interest or premium, the Guarantor Company or such Guarantor, as applicable, will pay such additional amounts (the “Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by each holder of the Securities of such series after such withholding, deduction or imposition (including any such withholding, deduction or imposition from such Additional Amounts) after will equal the respective amounts that would have been received in respect of such payments in the absence of such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducteddeduction; provided provided, however, that no Additional Amounts will be payable with respect to:
(i) any Taxes, to the extent such Taxes would not have been imposed but for the existence of any actual or deemed present or former connection between the holder or the beneficial owner of the Securities of a series and the relevant Tax Jurisdiction (including, without limitation, being or having been a national, resident or citizen of, being or having been engaged in a trade or business in, being or having been physically present in, or having or having had a permanent establishment in, such jurisdiction for Tax purposes), other than the holding of such Securities, the enforcement of rights under such Securities or under a Guarantee or the receipt of any payments in respect of such Securities or a Guarantee;
(ii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of such Securities for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Securities been presented on the last day of such 30 day period);
(iii) any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(iv) any Taxes withheld, deducted or imposed on a payment to an individual that are required to be made pursuant to European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26 and 27, 2000 on the taxation of savings income, or any law implementing or complying with or introduced in order to conform to, such directive;
(v) Taxes imposed on or with respect to a payment made to a holder of the Offered Securities who would have been able to avoid such withholding or deduction by presenting such Securities (where presentation is required) to another paying agent;
(vi) any Taxes payable other than by deduction or withholding from payments under, or with respect to, such Securities or the applicable Guarantee;
(vii) any Taxes to the extent such Taxes are imposed or withheld by reason of the failure of the holder or beneficial owner of such Securities, to comply with any written request of the Company or a holder Guarantor addressed to the Holder to satisfy any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a beneficial interests relevant Tax Jurisdiction, as a precondition to exemption from, or reduction in the Offered Securities where rate of deduction or withholding of, Taxes imposed by the relevant Tax Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in such holder Tax Jurisdiction), but in each case, only to the extent the Holder or beneficial owner is subject legally entitled to taxation on provide such payment by a relevant Taxing Jurisdiction for certification or documentation;
(viii) any reason other than such holder’s mere ownership withholding or deduction required pursuant to Section 1471(b) of the Offered Securities Internal Revenue Code of 1986, as amended (the “Code”), or for otherwise imposed pursuant to Sections 1471 through 1474 of the Code, any regulations or on account of:agreements thereunder, official interpretations thereof, or any law implementing an intergovernmental approach thereto;
(aix) any Taxes that are imposed or withheld solely because the beneficial owner of such holder Securities, or a fiduciary, settler, beneficiary, or member of such holder the beneficial owner if such holder the beneficial owner is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) holder owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the applicable Guarantor;; or
(x) any combination of clauses (i) through (ix) of this Section 14.02(a).
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date paid with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required any payment on a Security to provide such declaration or claim. Additional Amounts also will not be payable to any a Holder or the holder of a beneficial interest in an Offered Security that who is a fiduciary, partnershipa partnership or other entity treated as a partnership for U.S. federal income tax purposes, a limited liability company or other fiscally transparent entity, or to such holder entity that is not the sole Holder or holder beneficial owner of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only payment to the extent that such payment would be required by the laws of a relevant Tax Jurisdiction (or any political subdivision thereof) to be included in the income, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, a partner of such partnership or other entity treated as a beneficial owner or partnership for U.S. federal income tax purposes, a member of the partnership, such limited liability company or such other fiscally transparent entitybeneficial owner, in each case, who would not have been entitled to the payment of an Additional Amount Amounts had the that beneficiary, settlor, member or beneficial owner been the holder.
(c) The Company and the applicable Guarantor, as the case may be, will also pay and indemnify Holders for any present or member received directly its beneficial future stamp, issue, registration, court or distributive share documentary Taxes, or any other excise or property Taxes, charges or similar levies (including penalties, interest and any other reasonable expenses related thereto) which are levied by a relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of the payment. In additionSecurities of either series, no or this Indenture, the applicable Guarantee or any other document or instrument referred to therein in connection with a transfer of such Securities at the time of the initial resale by the Initial Purchasers.
(d) If the Company or a Guarantor, as the case may be, becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Securities of either series, or a Guarantee, the Company or such Guarantor, as the case may be, will deliver to the Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises fewer than 45 days prior to that payment date, in which case the Company or such Guarantor shall notify the Trustee in writing promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be paid payable and the amount estimated to be so payable. The Officer’s Certificate(s) must also set forth any other information reasonably necessary to enable the paying agent to pay such Additional Amounts to Holders of Securities of such series on account of the relevant Interest Payment Date. The Trustee shall be entitled to rely solely on such Officer’s Certificate (as supplemented, updated or revised by any Taxes imposed subsequent Officer’s Certificates) as conclusive proof that such payments are necessary.
(e) The Company or withheld pursuant to Sections 1471 through 1474 a Guarantor, as the case may be, will make all withholdings and deductions required by law in respect of the Code (or any amended or successor version that is substantively comparable) Securities, and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction Tax authority in accordance with all applicable lawslaw. The Company or such Guarantor will use its commercially reasonable efforts to obtain certified copies of tax Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxeswithheld. The Guarantor will, upon Upon reasonable written request, make available the Company or such Guarantor will furnish to the holders of the Offered SecuritiesTrustee (or to a Holder or beneficial owner upon written request), within 90 days a reasonable time after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable lawmade, certified copies of tax Tax receipts evidencing such payment by the Guarantor Company or such Guarantor, as the case may be, or if, notwithstanding Guarantorsuch entity’s efforts to obtain such receipts, the same receipts are not obtainableobtained, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect (reasonably satisfactory to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to Trustee) by such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. entity.
(f) The provisions of this Article II 14 shall survive any termination of the termination, defeasance or discharge of this Indenture and any transfer by a Holder or beneficial owner of the Securities of either series and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to a Guarantor or the Guarantor Company, as the case may be, is incorporated, organized or is engaged in business resident for tax purposes or any jurisdiction from or through which payment is made by or on behalf of such Person on such Securities (or any Guarantee) and any political subdivisions or taxing authority or agency subdivision thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. .
(g) Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of amounts based upon the principal and premium, if any, redemption priceamount of the Securities of a series or of principal, interest or of any other amount payable under or with respect to any such Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 3 contracts
Samples: Indenture (Mallinckrodt PLC), Indenture (Mallinckrodt PLC), Indenture (Covidien PLC)
Payment of Additional Amounts. All payments in respect of the Notes shall be made by Company, the Guarantor under or with respect to the Guarantees will be made free and clear of and Operating Partnership if an Operating Partnership Guarantee has been issued, as applicable, without withholding or deduction for for, or on account of of, any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature nature, imposed or levied by the Netherlands or on behalf of the United States or any Taxing Jurisdiction (“Taxes”)taxing authority thereof or therein, as applicable, unless the Guarantor such withholding or deduction is required to withhold by law. If such withholding or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor deduction is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to by law, the GuaranteesCompany, the Guarantor will or the Operating Partnership if an Operating Partnership Guarantee has been issued, as applicable, shall pay to a Holder who is not a United States person, as applicable, such additional amounts (the “Additional Amounts”) on the Securities as may be are necessary so in order that the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciaryCompany, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities Operating Partnership if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005an Operating Partnership Guarantee has been issued, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciaryapplicable, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment Paying Agent of principal of, and premium, if any, redemption priceand interest on, interest the Securities to such Holder, after such withholding or any other deduction, shall not be less than the amount payable under or with respect provided in the Securities to be then due and payable, provided, however, that the foregoing obligation to pay Additional Amounts shall not apply to the exceptions provided for in Section 1104 of the Original Indenture. The Notes are subject in all cases to any Securitytax, such mention fiscal or other law or regulation or administrative or judicial interpretation applicable to the Notes. Except as specifically provided hereunder, neither the Company nor the Guarantor nor the Operating Partnership if an Operating Partnership Guarantee has been issued, as applicable, shall be deemed required to include mention make any payment for any tax, duty, assessment or governmental charge of the payment whatever nature imposed by any government or a political subdivision or taxing authority of Additional Amounts to the extent that, or in such context, Additional Amounts are, were any government or would be payable in respect thereofpolitical subdivision.
Appears in 3 contracts
Samples: Supplemental Indenture (W. P. Carey Inc.), Third Supplemental Indenture (W. P. Carey Inc.), Supplemental Indenture (W. P. Carey Inc.)
Payment of Additional Amounts. All payments made by the Guarantor Company under or with respect to the Guarantees Offered Securities will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless the Guarantor Company is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor the Company is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the GuaranteesOffered Securities, the Guarantor Company will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Offered Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests interest in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Offered Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the GuarantorCompany;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Offered Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Offered Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Offered Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Offered Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Offered Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 3 contracts
Samples: Fourth Supplemental Indenture (ADT, Inc.), Fourth Supplemental Indenture (ADT, Inc.), Fourth Supplemental Indenture (ADT Corp)
Payment of Additional Amounts. (a) All payments made by the Guarantor Obligors under or with respect to the Guarantees Notes will be made free and clear of of, and without withholding or deduction for or on account of, any Tax, unless the withholding or deduction of such Tax is then required by law. If any deduction or withholding by any applicable withholding agent for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature Taxes imposed or levied by or on behalf of the United States or a taxing authority of or in the United States (a “Tax Jurisdiction”) will at any Taxing Jurisdiction (“Taxes”), unless the Guarantor is time be required to withhold or deduct Taxes by law or be made in respect of any payments made by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made Obligors under or with respect to the GuaranteesNotes, including payments of principal, redemption price, purchase price, interest or premium, then the Guarantor Obligors will pay such additional amounts (the “Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by each holder Holder of Securities the Notes that is not a U.S. Person (as defined below) after such withholding, deduction or imposition (including any such withholding, deduction or imposition in respect of any such Additional Amounts) after will equal the respective amounts that would have been received in respect of such payments in the absence of such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducteddeduction; provided provided, however, that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofto:
(a1) any Taxes, to the extent such Taxes that are would not have been imposed but for the Holder of a Note (or withheld solely because the beneficial owner for whose benefit such holder Holder holds such Note) or a fiduciary, settlersettlor, beneficiary, member or member shareholder of such holder the Holder if such holder the Holder is an estate, trust, partnership, limited liability company partnership or other fiscally transparent entitycorporation, or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
(ia) is or was present or engaged in, or is or was treated as present or engaged in, having a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present current or former connection with the relevant Tax Jurisdiction (other than a connection arising solely from the mere fact of ownership or disposition of such Securities) with Note, the Taxing Jurisdiction imposing enforcement of rights under such TaxesNote or the receipt of any payments in respect of such Note), including being or having been a citizen or resident thereof of such Tax Jurisdiction, being or being treated as having engaged in a trade or business in such Tax Jurisdiction or having or having had a permanent establishment in such Tax Jurisdiction; or
(b) being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, company or a controlled foreign corporationcorporation for U.S. federal income tax purposes, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States U.S. federal income tax; or
(iv) owns , or owned 10% a private foundation or more of the total combined voting power of all classes of stock of the Company or the Guarantorother tax-exempt organization;
(b2) any estateHolder that is not the sole beneficial owner of the Notes, inheritanceor a portion of the Notes, giftor that is a fiduciary, salespartnership or limited liability company, transfer, excise or personal property Taxes imposed but only to the extent that a beneficial owner with respect to the Securitiesholder, except as otherwise provided herein;
(c) any Taxes imposed solely as a result beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable partnership or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof limited liability company would not have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day periodbeneficial owner, beneficiary, settlor or member received directly its beneficial or distributive share of the payment;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g3) any Taxes required to be withheld by any paying agent from any payment in respect of principal of or interest on any Securities Note, if such payment can be made without such withholding by at least one other paying agent;
(h4) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder or beneficial owner would otherwise have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(5) any Taxes required to be deducted that are payable otherwise than by deduction or withheld pursuant withholding from a payment on or with respect to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amendedNotes;
(i6) any U.S. federal withholding or deduction for Taxes which would not have been tax imposed if the relevant Securities had been presented to another paying agent in as a Member State result of the European Unionbeneficial owner:
(a) being a controlled foreign corporation for U.S. federal income tax purposes related to the Issuer or the Guarantor;
(b) being or having been a “10-percent shareholder” of the Guarantor as defined in Section 871(h)(3) of the Code; or
(jc) being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business;
(7) any combination estate, inheritance, gift, sales, transfer, excise, wealth, capital gains, personal property or similar Taxes;
(8) any Taxes, to the extent such Taxes are imposed or withheld by reason of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a the Holder or the holder beneficial owner of a beneficial interest in an Offered Security Notes to make a valid declaration of non-residence comply with any certification, identification, information or other similar claim for exemption or to provide a certificate declaring its non-residencereporting requirements, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is whether required or imposed by statute, treaty, regulation, ruling regulation or administrative practice of the relevant Taxing Authority a Tax Jurisdiction, as a precondition to an exemption from, or reduction inin the rate of deduction or withholding of, Taxes imposed by the relevant TaxesTax Jurisdiction (including, and (y) at least 90 days prior to without limitation, a certification that the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that owner is not resident in the sole Holder or holder of such beneficial interests of such Offered SecurityTax Jurisdiction), as the case may be. This exceptionbut in each case, however, will apply only to the extent that a beneficiary the Holder or settlor with respect to the fiduciary, or a beneficial owner is legally eligible to provide such certification or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of documentation;
(9) any Taxes that are imposed or withheld pursuant to Sections 1471 through 1474 of the Code as of the date of the Indenture (or any amended or successor version that is substantively comparable) and ), any current or future regulations promulgated thereunder or any other official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code as of the date of Indenture (or any amended or successor version described above) or any intergovernmental agreements (and any related law, regulation or official administrative guidance) implementing the foregoing; or
(10) any combination of items (1) through (9) above.
(b) Except as specifically provided for in this Section 4.06, the Obligors will not be required to make any payment for any Tax.
(c) If the Obligors become aware that they will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes, the Obligors will deliver to the Trustee and Paying Agent promptly prior to the date of that payment an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Guarantor Officers’ Certificate must also set forth any other information reasonably necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date. The Trustee and Paying Agent shall be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary.
(d) The Issuer or the Guarantor, if it is the applicable withholding agent, will also (i) make such withholding or deduction of Taxes all withholdings and (ii) deductions required by law and will remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction Tax authority in accordance with all applicable lawslaw. The Guarantor Obligors will use its commercially reasonable efforts to obtain certified copies of tax Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxeswithheld. The Guarantor will, Obligors will furnish to the Trustee upon reasonable written request, make available to the holders of the Offered Securities, within 90 days a reasonable time after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable lawmade, certified copies of tax Tax receipts evidencing such payment by the Guarantor Obligors or if, notwithstanding Guarantorsuch entity’s efforts to obtain such receipts, the same receipts are not obtainableobtained, other reasonable evidence of such payments by Guarantor. At least 30 days prior to each date on which such entity.
(e) The above obligations will survive any payment under termination, defeasance or with respect to discharge of the Guarantees is due and payableIndenture, if the Guarantor will be obligated to pay Additional Amounts with respect to such paymentany transfer by a holder or beneficial owner of its Notes, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary apply, mutatis mutandis, to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever Obligors.
(f) As used in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal Section 4.06 and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.Section 3.03 hereof,
Appears in 3 contracts
Samples: Third Supplemental Indenture (Equinix Inc), Fourth Supplemental Indenture (Equinix Inc), Second Supplemental Indenture (Equinix Inc)
Payment of Additional Amounts. All If the Company merges or consolidates with, or sells or conveys substantially all of its assets to, a Foreign Successor (as permitted by Section 1.6 above with respect to the Offered Securities), all payments made by the Guarantor such Foreign Successor under or with respect to the Guarantees Offered Securities will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless the Guarantor such Foreign Successor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor a Foreign Successor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the GuaranteesOffered Securities, the Guarantor Foreign Successor will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Offered Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests interest in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settlersettlor, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Offered Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the GuarantorForeign Successor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Offered Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Offered Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Offered Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company Foreign Successor or any paying agent from payments in respect of such Offered Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Offered Securities if such payment can be made without such withholding by at least one other paying agent;; or
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a2.2(a), (b), (c), (d), (e), (f), (g), (h) and (ig). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor Foreign Successor shall apply this paragraph, the Guarantor Foreign Successor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests interest of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees Offered Securities is due and payable, if the Guarantor a Foreign Successor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor Foreign Successor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of or the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor Foreign Successor (or any successor Person to the Guarantor Foreign Successor if such successor is not organized under the laws of the United States or any state of the United States) is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor Foreign Successor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor Foreign Successor shall be substituted for the date on which the Offered Securities was were issued. Whenever in this Indenture, the Offered Securities or the Guarantees there is are mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Offered Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 3 contracts
Samples: Fifth Supplemental Indenture (ADT, Inc.), Fifth Supplemental Indenture (ADT, Inc.), Fifth Supplemental Indenture (ADT Corp)
Payment of Additional Amounts. All payments made by or on behalf of the Guarantor Company under or with respect to the Guarantees any Securities of any series (or by any Guarantor with respect to any Guarantee) will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless the Guarantor Company (or such Guarantor) is required to withhold or deduct such Taxes by law law. If the Company (or by the interpretation or administration thereof. In the event that Guarantor any Guarantor) is so required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the GuaranteesSecurities of any series any amount for or on account of any Taxes imposed under (1) any jurisdiction in which the Company (or any Guarantor) is then incorporated, organized, engaged in business or resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein or (2) any jurisdiction from or through which payment is made by or on behalf of the Company (or any Guarantor) (including the jurisdiction of any paying agent for the Securities of such series) or any political subdivision or taxing authority or agency thereof or therein (each of (1) and (2), a “Taxing Jurisdiction”), the Guarantor Company (or such Guarantor) will pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder Holder and beneficial owner of the Securities of such series (including Additional Amounts) after such withholding or deduction will equal not be less than the amount that such Holder or beneficial owner would have received if such Taxes had not been required to be withheld or deducted; provided that provided, however, no Additional Amounts will be payable to a Holder with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofto:
(a) any Taxes that are would not have been imposed but for the existence of any actual or withheld solely because deemed present or former connection between the Holder or the beneficial owner of the Securities of such holder series (or between a fiduciary, settlersettlor, beneficiary, member or member shareholder of, or possessor of such holder a power over, the relevant Holder or beneficial owner, if such holder the Holder or beneficial owner is an estate, a nominee, trust, partnership, limited liability company partnership or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(icorporation) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in and the relevant Taxing Jurisdiction or has or had (including being a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (resident of such jurisdiction for Tax purposes), other than the mere fact of ownership holding of such Securities) with Security, the Taxing Jurisdiction imposing enforcement of rights under such Taxes, including being Security or having been under a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company Guarantee or the Guarantorreceipt of any payments in respect of such Security or Guarantee;
(b) any Taxes imposed as a result of the presentation of a Security of such series for payment (in cases in which presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had such Security been presented on the last day of such 30-day period);
(c) any estate, inheritance, gift, sales, transferpersonal property, excise transfer or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day periodsimilar Taxes;
(d) any Taxes imposed solely as a result of the failure payable other than by deduction or withholding from payments under, or with respect to, Securities of such holder series or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such TaxesGuarantee;
(e) with respect to withholding any Taxes imposed by the United States, any such Taxes imposed or withheld by reason of the failure of the Holder or beneficial owner of Securities of such holder series to fulfill the statement requirements of sections 871(h) or 881(c) comply with any reasonable written request of the CodeCompany or the relevant Guarantor, addressed to the Holder and made at least 60 days before any such withholding or deduction would be made, to satisfy any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Taxing Jurisdiction), but in each case, only to the extent the Holder or beneficial owner is not prohibited from complying with such request;
(f) any Taxes that are payable Tax imposed on or with respect to any payment by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect the relevant Guarantor to the Holder if such Holder is a fiduciary or partnership or Person other than the sole beneficial owner of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3payment, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the such fiduciary, a member of such a partnership or a the beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, such payment would not have been entitled to the payment of an Additional Amount Amounts had the such beneficiary, settlor, member or beneficial owner or member received directly its beneficial or distributive share been the actual Holder of Securities of such series;
(g) any Taxes imposed pursuant to Sections 1471-1474 of the paymentUnited States Internal Revenue Code of 1986, as amended, and the U.S. Treasury regulations thereunder (“FATCA”), any intergovernmental agreement between the United States and any other jurisdiction implementing, or relating to, FATCA or any law, regulation or official guidance enacted or issued in any jurisdiction with respect thereto; or
(h) any combination of the above items. In additionaddition to the foregoing, no the Company and the Guarantors will also pay and indemnify the Holders for any present or future stamp, issue, registration, court or documentary Taxes, or any other excise or property Taxes, charges or similar levies (including penalties, interest and any other reasonable expenses related thereto) which are levied by any Taxing Jurisdiction on the execution, delivery, issuance, registration or enforcement of, or the receipt of payments with respect to, any of the Securities, this Indenture, any Guarantee or any other document or instrument referred to therein (other than on or in connection with a transfer of any Securities other than the initial resale of such Securities). If the Company or any Guarantor, as the case may be, becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to any Securities or any Guarantee, each of the Company or the relevant Guarantor, as the case may be, will deliver to the Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises less than 30 days prior to that payment date, in which case the Company or the relevant Guarantor shall notify the Trustee, in writing, promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant payable and the amount estimated to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereofbe so payable. The Officer’s Certificate(s) must also set forth any other information necessary to enable the paying agent to pay such Additional Amounts to Holders on the relevant payment date. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Company or the relevant Guarantor will also (i) provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts. The Company or the relevant Guarantor will make such withholding or deduction of Taxes all withholdings and (ii) deductions required by law and will remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction Tax authority in accordance with all applicable lawslaw. The Company or the relevant Guarantor will use its commercially reasonable efforts to obtain certified copies of tax Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxeswithheld. The Company or the relevant Guarantor will, upon request, make available will furnish to the holders of the Offered SecuritiesTrustee, within 90 days a reasonable time after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable lawmade, certified copies of tax Tax receipts evidencing such payment by the Guarantor Company or a Guarantor, as the case may be, or if, notwithstanding Guarantorsuch entity’s efforts to obtain such receipts, the same receipts are not obtainableobtained, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect (satisfactory to the Guarantees is due and payableTrustee) by such entity. Upon reasonable request, if copies of Tax receipts or other evidence of payments, as the Guarantor case may be, will be obligated to pay Additional Amounts with respect to such payment, made available by the Guarantor will deliver Trustee to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination Holders or beneficial owners of the discharge of Securities. Wherever in this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal (and premium, if any), redemption priceinterest, interest if any, or any other amount payable under or with respect to any SecuritySecurity or any Guarantee, such mention shall will be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The above obligations will survive any termination, defeasance or discharge of this Indenture, any transfer by a Holder or beneficial owner of its Securities, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Company or any Guarantor is incorporated, engaged in business or otherwise resident for tax purposes or any jurisdiction from or through which such Person makes any payment on any Securities (or any Guarantee) and, in each case, any political subdivision or taxing authority thereof or therein.
Appears in 3 contracts
Samples: Indenture (STERIS PLC), Indenture (STERIS LTD), Indenture (STERIS LTD)
Payment of Additional Amounts. (a) All payments made by the Co-Issuers under or with respect to the Notes or by a Guarantor under or with respect to the Guarantees will its Note Guarantee shall be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature Taxes imposed or levied by or on behalf of any Taxing Jurisdiction Authority in any jurisdiction in which a Co-Issuer or any Guarantor is organized or is otherwise resident for tax purposes, or any jurisdiction from or through which payment is made (each, a “TaxesRelevant Taxing Jurisdiction”), unless the such Co-Issuer or Guarantor is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof. In the event that .
(b) If a Co-Issuer or any Guarantor is required to so withhold or deduct any amount for or on account of any Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the GuaranteesNotes or the Note Guarantee of such Guarantor, the Guarantor will Co-Issuers or the relevant Guarantor, as applicable, shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities Holder (including Additional Amounts) after such withholding or deduction will shall equal the amount that such the Holder would have received if such Taxes had not been required to be withheld or deducted; provided provided, however, that no Additional Amounts will be shall payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofTax:
(a1) any Taxes that are imposed would not have been imposed, payable or withheld solely because such holder or a fiduciary, settler, beneficiary, or member due but for the existence of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection between the Holder (or the Beneficial Owner of, or person ultimately entitled to obtain an interest in, such Notes) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) other than the mere fact holding of ownership the Notes or enforcement of rights under such Note or under a Guarantee or the receipt of payments in respect of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being Note or having been a citizen or resident thereof or being treated as being or having been a resident thereofGuarantee;
(iii2) with respect that would not have been imposed, payable or due but for the failure to satisfy any withholding Taxes certification, identification or other reporting requirements whether imposed by statute, treaty, regulation or administrative practice; provided, however, that the United States, is or was with respect Co-Issuers have delivered a request to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings Holder to avoid United States federal income tax; or
(iv) owns or owned 10% or more of comply with such requirements at least 30 days prior to the total combined voting power of all classes of stock of the Company or the Guarantordate by which such compliance is required;
(b3) any that would not have been imposed, payable or due if the presentation of Notes (where presentation is required) for payment had occurred within 30 days after the date such payment was due and payable or was duly provided for, whichever is later;
(4) subject to Section 4.20(e), that is an estate, inheritance, gift, sales, transferexcise, excise transfer or personal property Taxes imposed with respect to the Securitiestax, except as otherwise provided herein;assessment or charge; or
(c5) any Taxes imposed solely as a result of a combination of the presentation of foregoing clauses (1) through (4). In addition, Additional Amounts shall not be payable if the Beneficial Owner of, or person ultimately entitled to obtain an interest in, such Securities (where presentation is required) for payment on a date more than 30 days after Notes had been the date on which Holder and such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof Beneficial Owner would have been not be entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
clause (f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a1), (b2), (c3), (d), 4) or (e), (f), (g), (h5) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the paymentabove. In addition, no Additional Amounts will shall not be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or payable with respect to the Guarantees any Tax which is due and payablepayable otherwise than by withholding from any payment under, if the Guarantor will be obligated to pay Additional Amounts with or in respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor Notes or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Guarantee.
(c) Whenever in this Indenture, the Securities Indenture or the Guarantees Notes there is mentioned, in any context, the payment of amounts based upon the principal and amount of the Notes or of principal, premium, if any, redemption priceinterest, interest if any, or of any other amount payable under or with respect to any SecurityNote, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(d) Upon request, the Co-Issuers shall provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts.
(e) The Co-Issuers and the Guarantors shall pay any present or future stamp, court or documentary taxes, or any similar taxes, charges or levies which arise in any Relevant Taxing Jurisdiction from the execution, delivery or registration of the Notes, this Indenture or any other document or instrument referred to therein, or the receipt of any payments with respect to or enforcement of, the Notes or any Guarantee.
(f) Notwithstanding anything to the contrary contained in this Indenture, the Co-Issuers and the Guarantors may, to the extent required to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America from any payments under this Indenture; provided that the foregoing shall not limit the obligation of the Co-Issuers and the Guarantors to pay Additional Amounts as set forth in this Section 4.20.
Appears in 3 contracts
Samples: Eighth Supplemental Indenture (Navios Maritime Holdings Inc.), Supplemental Indenture (Navios Maritime Holdings Inc.), Indenture (Navios Maritime Holdings Inc.)
Payment of Additional Amounts. All payments made by the Issuer or any Guarantor under or with respect to the Guarantees Notes will be made free and clear of of, and without withholding or deduction for or on account of of, any present or future taxestax, dutiesduty, levieslevy, impostsimpost, assessments assessment or other governmental charges of whatever nature charge (“Taxes”) imposed or levied by or on behalf of the government of Canada or Bermuda or of any province or territory therein or thereof or by any authority or agency therein or thereof having power to tax (a “Relevant Taxing Jurisdiction (“TaxesJurisdiction”), unless the Issuer or any Guarantor (as applicable) is required to withhold or deduct Taxes taxes by law the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof. In If the event that Issuer or any Guarantor is so required to so withhold or deduct any amount for or on account of any Taxes taxes imposed or levied by a Relevant Taxing Jurisdiction from any payment made by it under or with respect to the GuaranteesNotes, the Issuer or such Guarantor (as applicable) will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) by each Holder (including, as applicable, the beneficial owners in respect of any such Holder) after such withholding or deduction will equal not be less than the amount that the Holder (including, as applicable, the beneficial owners in respect of any such Holder Holder) would have received if such Taxes taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
to: (a) any Taxes that are imposed payment to a Holder or withheld solely because beneficial owner who is liable for such holder taxes in respect of such Note (i) by reason of such Holder or beneficial owner, or any other person entitled to payments on the Note, being a person with whom the Issuer or any Guarantor does not deal at arm’s length (within the meaning of the Income Tax Act (Canada) (the “Tax Act”)), (ii) by reason of the existence of any present or former connection between such Holder or beneficial owner (or between a fiduciary, settlersettlor, beneficiary, member or member shareholder of, or possessor of power over, such holder Holder or beneficial owner, if such holder Holder or beneficial owner is an estate, trust, partnership, limited liability company or other fiscally transparent entity, corporation) and Canada or a person holding a power over an estate any province or trust administered by a fiduciary holder:
(i) is territory thereof or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (therein other than the mere fact of ownership ownership, or receiving payments under or enforcing any rights in respect of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being Note as a non-resident or having been a citizen deemed non-resident of Canada or resident any province or territory thereof or being treated as being therein, or having been a resident thereof;
(iii) by reason of such Holder or beneficial owner being a “specified shareholder” of the Issuer or not dealing at arm’s length with a “specified shareholder” of the Issuer as defined in subsection 18(5) of the Tax Act; (b) any tax that is levied or collected other than by withholding from payments on or in respect to of the Notes; (c) any withholding Taxes imposed by Note presented for payment (where presentation is required) more than 30 days after the United States, is later of (i) the date on which such payment first becomes due or was with respect (ii) if the full amount of the monies payable has not been paid to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more Holders of the total combined voting power Notes on or prior to such date, the date on which the full amount of all classes of stock such monies has been paid to the Holders of the Company or Notes, except to the Guarantor;
extent that the Holder of the Notes would have been entitled to such Additional Amounts on presentation of the same for payment on the last day of such period of 30 days; (bd) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
tax or any similar tax; (ce) any Taxes tax imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder a Holder or any other person beneficial owner to comply with applicable certification, informationidentification, documentation declaration or other similar reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction Canada or any province or territory thereof or therein of such holderHolder or beneficial owner, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction by regulation, as a precondition to relief reduction of, or exemption exemption, from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
tax; (f) any Taxes that are payable by any method other than (i) withholding or deduction by imposed pursuant to Sections 1471 to 1474 of the Guarantor or the Company U.S. Internal Revenue Code of 1986, as amended (“FATCA”), or any paying agent successor version thereof, or any similar legislation imposed by any other governmental authority, or (ii) tax or penalty arising from payments in the Holder’s or beneficial owner’s failure to properly comply with the Holder’s or beneficial owner’s obligations imposed under the Canada-United States Enhanced Tax Information Exchange Agreement Implementation Act (Canada) or any treaty, law or regulation or other official guidance enacted by Canada implementing FATCA or an intergovernmental agreement with respect to FATCA or any similar legislation imposed by any other governmental authority, including, for greater certainty, Part XVIII and Part XIX of such Securities;
the Tax Act; or (g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State combination of the European Union; or
foregoing clauses (ja) any combination of Section 3.02(a), (b), (c), (d), (e), to (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (The Issuer or any amended or successor version that is substantively comparableGuarantor (as applicable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i1) make such withholding or deduction of Taxes and (ii2) remit the full amount of Taxes so deducted or withheld by it to the relevant Taxing Jurisdiction authority in accordance with all applicable lawslaw. The Issuer or any Guarantor (as applicable) will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available furnish to the holders Holders of the Offered SecuritiesNotes, within 90 30 days after the date the payment of any Taxes so deducted or withheld taxes by it is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by it. The Issuer and the Guarantor or ifGuarantors will indemnify and hold harmless each Holder (including, notwithstanding Guarantor’s efforts to obtain such receiptsas applicable, the same are beneficial owners in respect of any such Holder) and, upon written request, will reimburse each such Holder (including, as applicable, the beneficial owners in respect of any such Holder) for the amount of (i) any taxes (other than any taxes for which Additional Amounts would not obtainablebe payable pursuant to clauses (a) through (g) above) levied or imposed and paid by such Holder (including, other evidence as applicable, the beneficial owners in respect of any such Holder) as a result of payments by Guarantor. At least 30 days prior to each date on which any payment made under or with respect to the Guarantees is due Notes which have not been withheld or deducted and payableremitted by the Issuer or any Guarantor (as applicable) in accordance with applicable law, if the Guarantor will be obligated to pay (ii) any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, and (iii) any taxes (other than any taxes for which Additional Amounts would not be payable pursuant to clauses (a) through (g) above) imposed with respect to any reimbursement under clause (i) or (ii) above, but excluding any such paymenttaxes on such Holder’s (including, as applicable, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that beneficial owners in respect of any such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issuedHolder’s) net income. Whenever in this Indenture, the Securities or the Guarantees Indenture there is mentioned, in any context, the payment of principal (and premium, if any), redemption amount, purchase price, interest or any other amount payable under or with respect to any SecurityNote, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The obligations of the Issuer and the Guarantors under this Section 2.14 shall survive the termination of this Indenture and the payment of all amounts under or with respect to the Notes.
Appears in 3 contracts
Samples: Second Supplemental Indenture (Brookfield Renewable Corp), First Supplemental Indenture (Brookfield Renewable Partners L.P.), First Supplemental Indenture (Brookfield Renewable Corp)
Payment of Additional Amounts. All payments made by of principal, premium (if any) and interest in respect of the Guarantor under Notes or with respect to the Guarantees will be made free and clear of of, and without withholding or deduction for or on account of for, any present or future taxes, dutiesassessments, levies, imposts, assessments duties or governmental charges of whatever nature imposed imposed, levied or levied collected by the United States (or on behalf of any Taxing Jurisdiction (“Taxes”political subdivision or taxing authority thereof or therein having power to tax), unless the Guarantor such withholding or deduction is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof. In The Issuer or the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect relevant Subsidiary Guarantor, as applicable, will, subject to the Guaranteesexceptions and limitations set forth below, pay in respect of the Guarantor will pay Notes and the Guarantees such additional amounts (“Additional Amounts”) as may be are necessary so in order that the net amount payment by the Issuer of the principal of, premium (if any) and interest in respect of the Notes or the Guarantees (including payments of Additional Amounts with respect to such amounts) received by each holder of Securities a beneficial owner who is not a United States Person (including Additional Amounts) as defined below), after such withholding or deduction for any present or future tax, assessment, duties or other governmental charge imposed by the United States (or any political subdivision or taxing authority thereof or therein having power to tax), will equal not be less than the amount that such Holder would have received if such Taxes had not been required provided in the Notes to be withheld or deductedthen due and payable; provided provided, however, that no the foregoing obligation to pay Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofshall not apply:
(a) to the extent any Taxes that are tax, assessment or other governmental charge is imposed by reason of the Holder (or withheld solely because the beneficial owner for whose benefit such holder Holder holds such Note), or a fiduciary, settlersettlor, beneficiary, member or member shareholder of such holder the Holder if such holder the Holder is an estate, trust, partnership, limited liability company partnership or other fiscally transparent entitycorporation, or a person Person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
(i) is being or was present or having been engaged in, or is or was treated as present or engaged in, in a trade or business in the Taxing Jurisdiction United States or has having or having had a permanent establishment in the Taxing JurisdictionUnited States;
(ii) has or had any present having a current or former connection with the United States (other than a connection arising solely as a result of the mere fact of ownership of such Securities) the Notes, the receipt of any payment with respect thereto or the Taxing Jurisdiction imposing such Taxesenforcement of any rights hereunder), including being or having been a citizen or resident thereof or being treated as being or having been a resident thereofof the United States;
(iii) with respect to any withholding Taxes imposed by the United States, is being or was with respect to the United States having been a personal holding company, a passive foreign investment company, company or a controlled foreign corporation, corporation for U.S. federal income tax purposes or a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States U.S. federal income tax;
(iv) being or having been a “10-percent shareholder” of Sysco as defined in Section 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision; or
(ivv) owns being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or owned 10% or more business, as described in Section 881(c)(3)(A) of the total combined voting power of all classes of stock of the Company Code or the Guarantorany successor provision;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder that is not the sole beneficial owner of the Notes, or a portion of the holder of a beneficial interest in an Offered Security Notes, or that is a fiduciary, partnership, partnership or limited liability company or other fiscally transparent entitycompany, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply but only to the extent that a beneficial owner with respect to the Holder, a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, partnership or limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition;
(c) to the extent any tax, no assessment or other governmental charge that would not have been imposed but for the failure of the Holder or any other Person to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of the Notes, if compliance is required by statute, by regulation of the United States or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from such tax, assessment or other governmental charge;
(d) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding by the Issuer or a Paying Agent from the payment;
(e) to any tax, assessment or other governmental charge required to be withheld by any Paying Agent from any payment of principal of or interest on any Notes, if such payment can be made without such withholding by any other Paying Agent;
(f) to any estate, inheritance, gift, sales, transfer, wealth, capital gains or personal property tax or similar tax, assessment or other governmental charge, or excise tax imposed on the transfer of the Notes;
(g) to any withholding or deduction that is imposed on a payment to an individual and that is required to be made pursuant to the Directive or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26 and 27, 2000 on the taxation of savings income, or any law implementing or complying with or introduced in order to conform to, such directive;
(h) to any tax, assessment or other governmental charge required to be withheld by any Paying Agent from any payment of principal of or interest on any Note as a result of the presentation of any Note for payment (where presentation is required) by or on behalf of a Holder of any Note, if such payment could have been made without such withholding by presenting the relevant Note to at least one other Paying Agent in a member state of the European Union;
(i) to the extent any tax, assessment or other governmental charge would not have been imposed but for the presentation by the Holder of any Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later except to the extent that the beneficiary or Holder thereof would have been entitled to the payment of Additional Amounts will be paid had such Note been presented for payment on account of any Taxes day during such 30-day period;
(j) to any tax, assessment or other governmental charge imposed or withheld pursuant to under Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or official interpretations thereof, any agreement entered into pursuant to section 1471(b) of the Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code; or
(k) in the case of any combination of the items in clauses (a) through (j) above. The Guarantor Issuer or the relevant Subsidiary Guarantor, as the case may be, will also (i) make such withholding or deduction of Taxes all withholdings and (ii) deductions required by law and will remit the full amount of Taxes so deducted to or withheld to the relevant Taxing Jurisdiction tax authority in accordance with all applicable lawslaw. The Guarantor Upon request, the Issuer or the relevant Subsidiary Guarantor, as the case may be, will use its commercially reasonable efforts provide to obtain certified copies of tax the Trustee an official receipt or, if official receipts are not obtainable, other documentation reasonably satisfactory to the Trustee evidencing the payment of any Taxes taxes so deducted or withheld from each Taxing Authority imposing such Taxeswithheld. The Guarantor will, upon Upon request, make copies of those receipts or other documentation, as the case may be, will be made available by the Trustee to the holders Holders of the Offered Securities, within 90 days after Notes. If the date the payment of Issuer or any Taxes so deducted or withheld Subsidiary Guarantor is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated required to pay Additional Amounts with respect to such paymentthe Notes, the Guarantor Issuer will deliver to notify the Trustee and Paying Agents pursuant to an Officer’s Certificate stating that specifies the fact Additional Amounts payable and when the Additional Amounts are payable. If the Trustee and the Paying Agents do not receive such an Officer’s Certificate from the Issuer, the Trustee and the Paying Agents may rely on the absence of such an Officer’s Certificate in assuming that no such Additional Amounts will be are payable. The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable to the Notes. Except as specifically provided herein, the amounts so payable and Issuer will set forth such not be required to make any payment for any tax, assessment or other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive governmental charge imposed by any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor government or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any a political subdivisions subdivision or taxing authority of or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest government or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofpolitical subdivision.
Appears in 2 contracts
Samples: Supplemental Indenture (Sysco Corp), Supplemental Indenture (Sysco Corp)
Payment of Additional Amounts. (a) All payments and deliveries made by the Guarantor Company or any successor to the Company under or with respect to this Indenture and the Guarantees will Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of within any jurisdiction in which the Company or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction (“TaxesJurisdiction”), unless the Guarantor such withholding or deduction is required to withhold or deduct Taxes by law or by regulation or governmental policy having the interpretation or administration thereofforce of law. In the event that Guarantor any such withholding or deduction is required to so withhold required, the Company or deduct any amount for or on account of any Taxes from any payment made under or with respect successor to the Guarantees, the Guarantor will Company shall pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary so to ensure that the net amount received by each holder of Securities (including Additional Amounts) the beneficial owner after such withholding or deduction will (and after deducting any taxes on the Additional Amounts) shall equal the amount amounts that such Holder would have been received if by such Taxes beneficial owner had not no such withholding or deduction been required to be withheld or deductedrequired; provided that no Additional Amounts will shall be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or payable:
(i) for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciarytax, settlerduty, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company assessment or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holdergovernmental charge that would not have been imposed but for:
(i1) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had existence of any present or former connection (between the relevant Holder or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the mere fact receipt of ownership payments or the enforcement of rights thereunder, including, without limitation, such Securities) with the Taxing Jurisdiction imposing such Taxes, including Holder or beneficial owner being or having been a citizen national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being treated as being or having been physically present or engaged in a resident thereoftrade or business therein or having or having had a permanent establishment therein;
(iii2) with respect the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment became due and payable pursuant to any withholding Taxes imposed by the United States, is terms thereof or was with respect made or duly provided for, except to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization extent that the holder or corporation that has accumulated earnings beneficial owner of such Note would have been entitled to avoid United States federal income taxsuch Additional Amounts on presenting such Note for payment on any date during such 30-day period; or
(iv3) owns or owned 10% or more the failure of the total combined voting power of all classes of stock of Holder or beneficial owner to comply with a timely request from the Company or any successor of the GuarantorCompany, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, salessale, transfer, excise or excise, personal property Taxes imposed with respect to the Securitiesor similar tax, except as otherwise provided hereinassessment or other governmental charge;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation tax, duty, assessment or other governmental charge that is required) for payment on a date more payable otherwise than 30 days after the date on which such payment became due and payable by withholding from payments under or the date on which payment thereof is duly provided for, whichever is later, except with respect to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day periodNotes;
(d) any Taxes imposed solely as a result of tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the failure of such holder United States and any other jurisdiction to implement FATCA or any law enacted by such other person jurisdiction to comply with applicable certificationgive effect to such agreement, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection any agreement with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;U.S. Internal Revenue Service under FATCA
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(ataxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c), ) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, (eif applicable, and the Redemption Price, if applicable), (f)premium, (g)if any, (h) and (i). interest, including any Additional Amounts will not be payable Interest, on, such Note to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residenceHolder, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company partnership or person other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, who would not have been entitled to the payment of an such Additional Amount Amounts had the that beneficiary, settlor, partner or beneficial owner or member received directly its beneficial or distributive share of been the payment. In addition, no Additional Amounts Holder thereof.
(b) The Company will be paid on account of make any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such required withholding or deduction of Taxes taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction taxing jurisdiction in accordance with all applicable lawslaw. The Guarantor Company will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available furnish to the holders of the Offered Securitiestrustee, within 90 30 days after the date the payment of any Taxes taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment by the Guarantor or ifor, notwithstanding Guarantor’s efforts to obtain if such receipts, the same receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such payments taxes, charges or similar levies imposed by Guarantor. At least 30 days prior any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to each date on which any payment under or be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Guarantees is due and payable, if Notes.
(d) Any reference in this Indenture or the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver Notes in any context to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders delivery of Offered Securities on the payment date. The provisions ADSs (together with payments of this Article II shall survive cash for any termination fractional ADSs) upon conversion of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor Notes or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premiumof (including the Fundamental Change Repurchase Price, if anyapplicable, redemption priceand the Redemption Price, interest if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable under or with respect to any Securitysuch Note, such mention shall be deemed to include mention of any Additional Amounts, unless the payment of Additional Amounts to the extent thatcontext requires otherwise, in such context, Additional Amounts are, were that are or would may be payable with respect to that amount under the obligations referred to in respect thereofthis Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 2 contracts
Samples: Indenture (WEIBO Corp), Indenture (Sina Corp)
Payment of Additional Amounts. All payments made (a) The Issuer and the Guarantor shall pay, in respect of any payment of principal of, and any premium and interest on the Notes, to a registered holder or beneficial owner thereof that, in the case of payment by the Guarantor under Issuer, is not a resident of the jurisdiction of incorporation or with respect to residence for tax purposes of the Guarantees will be made free and clear of and without withholding Issuer or deduction for any successor entity, or on account of any present political subdivision or future taxes, duties, levies, imposts, assessments taxing authority thereof or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction therein (the “TaxesIssuer Jurisdiction”), unless or in the case of payment by the Guarantor, is not a resident of the jurisdiction of incorporation or residence for tax purposes of the Guarantor is required to withhold or deduct Taxes by law any successor entity, or by any political subdivision or taxing authority thereof or therein (the interpretation or administration thereof. In “Guarantor Jurisdiction”, and together with the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the GuaranteesIssuer Jurisdiction, the Guarantor will pay “Relevant Jurisdictions”) for purposes of taxation, such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each such registered holder or beneficial owner of Securities a Note, after deduction or withholding for any and all present and future tax, levy, impost or other governmental charge whatsoever imposed, assessed, levied or collected by or for the account of the United States, the United Kingdom or any political subdivision thereof or any authority thereof having the power to tax, or any other Relevant Jurisdiction (including Additional Amounts“Taxes”) after such withholding or deduction will equal not be less than the amount that such Holder holder would have received if such Taxes had not been required to be withheld or deducted; provided provided, however, that no neither the Issuer nor the Guarantor shall be required to pay any Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(ai) any Taxes Any present or future Tax that are imposed would not have been so imposed, assessed, levied or withheld solely because such collected but for the fact that the registered holder of the Note (or a fiduciary, settlersettlor, beneficiary, member or member shareholder of, or possessor of a power over, such holder holder, if such holder is an estate, trust, partnership, limited liability company partnership or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(icorporation) is or was present has been a domiciliary, national or engaged inresident of, or is engaging or was treated as present or having been engaged in, in a trade or business in the Taxing Jurisdiction or has maintaining or had having maintained a permanent establishment or being or having been physically present in the Taxing JurisdictionRelevant Jurisdiction or otherwise having or having had some connection with the Relevant Jurisdiction other than the mere holding or ownership of, or the collection of principal of, and interest on, a Note;
(ii) has or had any Any present or former connection (other than future Tax that would not have been so imposed, assessed, levied or collected but for the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxesthat, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date required in order to receive payment, the Note was presented more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly was provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(diii) any Taxes imposed solely as a result Any estate, inheritance, gift, transfer, personal property or similar Tax;
(iv) Any present or future Tax that is payable otherwise than by deduction or withholding from payments on or in respect of the Note;
(v) Any present or future Tax that would not have been so imposed, assessed, levied or collected but for the failure of such by the registered holder or the beneficial owner of the Note to comply, (following a written request addressed to the registered holders), with any other person to comply with applicable certification, information, documentation identification or other reporting requirements concerning the nationality, residence, residence or identity of such registered holder (or beneficial owner) or its connection with the Taxing Relevant Jurisdiction of such holder, if such compliance is required by statute statute, regulation or regulation administrative practice of the relevant Taxing Jurisdiction Relevant Jurisdiction, as a precondition condition to relief or exemption from such TaxesTax;
(evi) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than Any withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes imposed on a payment to an individual that is required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Union Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, such Directive;
(vii) Any withholding or deduction that Directive is imposed on the Note that is presented for payment, where presentation is required, by or on behalf of a registered holder who would have been able to avoid such withholding or deduction by presenting the Luxembourg Law Note to another paying agent;
(viii) Any withholding of December 23, 2005Taxes imposed under Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended;
(i) , or any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Unionsuccessor provisions; or
(jix) any Any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and the Taxes described in (i). ) through (viii) above, nor will Additional Amounts will not be payable to or for the account paid in respect of any Holder or payment in respect of the Notes to any registered holder of the Notes that is a fiduciary or partnership or any person other than the sole beneficial interest in an Offered Security if owner of such payment to the extent such payment would not be subject to such withholding or deduction of Taxes but for required by the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice laws of the relevant Taxing Authority as a precondition Relevant Jurisdiction to an exemption from, or reduction in, be included in the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders income for tax purposes of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of such partnership or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, that would not have been entitled to the payment of an Additional Amount such amounts had the such beneficiary, settlor, member or beneficial owner or member received directly its beneficial or distributive share of been the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence registered holder of such payments by GuarantorNotes. At least 30 days prior References in these Conditions to each date on which any payment under “principal”, “premium” or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention “interest” shall be deemed to include mention of the payment of references to Additional Amounts payable with respect thereto. References to the extent that, in such context, Additional Amounts are, were “Issuer” shall be deemed to include references to any person into or would with which the Issuer merges or consolidates or to which the Issuer transfers or leases its assets substantially as an entity and references to the “Guarantor” shall be payable in respect thereofdeemed to include references to any person into or with which the Guarantor merges or consolidates or to which the Guarantor transfers or leases its assets substantially as an entity.
Appears in 2 contracts
Samples: Fiscal and Paying Agency Agreement (Brandbev S.a r.l.), Fiscal and Paying Agency Agreement (Brandbev S.a r.l.)
Payment of Additional Amounts. (a) All payments made by the Guarantor under Issuer or the Note Guarantors under, or with respect to to, the Guarantees will Notes shall be made free and clear of of, and without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, impostsimpost, assessments assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of any government or jurisdiction (a “Taxing Jurisdiction (“TaxesJurisdiction”), ) unless the Guarantor Issuer or such Note Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof. In .
(b) If the event that Issuer or any Note Guarantor is so required to so withhold or deduct any amount for for, or on account of any of, such Taxes from any payment made under or with respect to the GuaranteesNotes, the Guarantor will Issuer or such Note Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities Holder (including Additional Amounts) after such withholding or deduction will equal shall not be less than the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided provided, however, that no the foregoing obligation to pay Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holderdoes not apply to:
(i) any Taxes imposed solely because at any time there is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in connection between the Holder and a Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact purchase of the Notes, or receipt of a payment or the ownership or holding of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;Note),
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(bii) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes or similar Tax imposed with respect to the Securities, except as otherwise provided herein;Notes,
(ciii) any Taxes imposed solely because the Holder or any other person fails to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with a Taxing Jurisdiction of the Holder or any beneficial owner of the Note if compliance is required by the applicable law of the Taxing Jurisdiction as a result of precondition to exemption from, or reduction in the presentation of rate of, the tax, assessment or other governmental charge and we have given the Holders at least 30 days’ notice that Holders shall be required to provide such Securities information and identification,
(where presentation is requirediv) any Taxes payable otherwise than by deduction or withholding from payments on the Notes,
(v) any Taxes with respect to such Note presented for payment on a date more than 30 days after the date on which such the payment became due and payable or the date on which payment thereof is duly provided forfor and notice thereof given to Holders, whichever is occurs later, except to the extent that the beneficiary or holder thereof Holders of such Note would have been entitled to the payment of such Additional Amounts had the Securities been presented on presenting such Note for payment on any date during such 30-30 day period;, and
(dvi) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order Note to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company fiduciary or partnership or a person other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of any such beneficial interests of such Offered Securitypayment, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the such fiduciary, a member of such a partnership or a the beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, payment would not have been entitled to the payment of an Additional Amount Amounts had the beneficiary, settlor, member or beneficial owner or member received directly its beneficial or distributive share been the Holder of the payment. In addition, no Additional Amounts will be paid on account Note.
(c) The obligations in Section 3.22(a) and Section 3.22(b) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxes imposed or withheld pursuant Taxing Jurisdiction with respect to Sections 1471 through 1474 of any successor to the Code (Issuer or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereofNote Guarantor, as the case may be. The Guarantor will also Issuer or such Note Guarantor, as applicable, shall (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable lawslaw. The Guarantor will Issuer or such Note Guarantor, as applicable, shall use its commercially all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority Jurisdiction imposing such Taxes. The Guarantor will, upon request, make available Taxes and shall furnish such certified copies to the holders of the Offered Securities, Trustee within 90 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable lawlaw or, certified copies of if such tax receipts evidencing are not reasonably available to the Issuer, furnish such other documentation that provides reasonable evidence of such payment by the Guarantor Issuer.
(d) In addition, clause (iii) of Section 3.22(b) does not require that any person, including any non-Mexican pension fund, retirement fund or iffinancial institution, notwithstanding Guarantor’s efforts register with the Ministry of Finance and Public Credit to obtain such receiptsestablish eligibility for an exemption from, the same are not obtainableor a reduction of, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever Mexican withholding tax.
(e) Any reference in this Indenture, the Securities any supplemental indenture or the Guarantees there is mentionedNotes to principal, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or in respect of the Notes by the Issuer shall be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this subsection.
(f) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 3.22 are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, and without any Securityfurther action, such mention shall be deemed to include mention have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to us. However, by making such assignment, the payment of Additional Amounts Holder makes no representation or warranty that we shall be entitled to the extent that, in receive such context, Additional Amounts are, were claim for a refund or would be payable in credit and incurs no other obligation with respect thereofthereto.
Appears in 2 contracts
Samples: Indenture (Cemex Sab De Cv), Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. All payments made by the Guarantor under or (a) The Company shall pay any amounts due with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees will be made free without deduction or withholding for any and clear of all present and without future withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental imposts and charges of whatever nature (a “withholding tax”) imposed or levied by or on behalf for the account of the Cayman Islands, Switzerland or any other jurisdiction in which either the Company or a Guarantor is a resident for tax purposes or any political subdivision or taxing authority of such jurisdiction (the “Taxing Jurisdiction (“TaxesJurisdiction”), unless the Guarantor such withholding or deduction is required by law. If such deduction or withholding is at any time required, the Company or such Guarantor, as applicable, will, to withhold or deduct Taxes the fullest extent allowed by law or (subject to compliance by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct holder of a Security with any amount for or on account of any Taxes from any payment made under or with respect to the Guaranteesrelevant administrative requirements), the Guarantor will pay such additional amounts (the “Additional Amounts”) in respect of principal amount, redemption price and interest (if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so that the net amount received by each amounts paid to the holder of Securities (including Additional Amounts) or the Trustee after such deduction or withholding or deduction will equal the amount that such Holder would have received principal amount, redemption price and interest (if such Taxes had not been required to be withheld or deducted; provided that no any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts will in the following instances:
(1) if any withholding would not be payable with respect to a payment to a holder of or due but for the Offered Securities or a fact that (i) the holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
Security (a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settlersettlor, beneficiarybeneficiary of, member or member of such holder shareholder of, the holder, if such the holder is an estate, trust, partnershippartnership or corporation), limited liability company is a domiciliary, national or other fiscally transparent entityresident of, or engaging in business or maintaining a person holding a power over an estate permanent establishment or trust administered by a fiduciary holder:
(i) is or was being physically present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any otherwise having some present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing other than the holding or ownership of the Security or the collection of principal amount, redemption price, repurchase price and interest (if any), in accordance with the terms of the Securities and this Indenture, or the enforcement of the Security or (ii) where presentation is required, the Security was presented more than 30 days after the date such Taxespayment became due or was provided for, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereofwhichever is later;
(iii2) with respect to if any withholding Taxes imposed by the United States, tax is or was with respect attributable to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or excise, personal property Taxes imposed with respect to the Securitiesor similar tax, except as otherwise provided hereinlevy, impost or charge;
(c3) if any Taxes imposed solely as a result of the presentation of such Securities (where presentation withholding tax is required) for payment on a date more attributable to any tax, levy, impost or charge which is payable otherwise than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the by withholding from payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day periodprincipal amount, redemption price, repurchase price and interest (if any);
(d4) if any Taxes withholding tax would not have been imposed solely as a result of but for the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection connections with the Taxing Jurisdiction relevant tax authority of such holderthe holder or beneficial owner of the Security, if such this compliance is required by statute or by regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxeswithholding tax;
(e5) with respect to withholding Taxes imposed by the United States, any extent a holder of a Security is entitled to a refund or credit in such Taxes imposed by reason Taxing Jurisdiction of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes amounts required to be withheld by such Taxing Jurisdiction;
(6) if any paying agent withholding is required to be made pursuant to laws enacted by Switzerland providing for the taxation of payments according to principles similar to those laid down in the draft legislation of the Swiss Federal Council of December 17, 2014, or otherwise changing the Swiss federal withholding tax system from an issuer-based system to a paying‑agent‑based system pursuant to which a person other than the issuer is required to withhold tax on any payment interest payments;
(7) if any withholding tax or deduction is required to be made in respect of any Securities if such payment can be made without such withholding by at least one tax, duty, assessment or other paying agent;
(h) any Taxes required to be deducted governmental charge imposed or withheld pursuant to Sections 1471 through 1474 of the European Council Directive 2003/48/EC Code, as of June 3the date hereof (or any amended or successor version), 2003 on current or future U.S. Treasury Regulations issued thereunder or any official interpretation thereof, any agreement entered into pursuant to Section 1471(b) of the taxation of savings income in the form of interest paymentsCode, or any amendment thereoffiscal or regulatory legislation, rules or practices adopted pursuant to any law implementing or complying with, or introduced intergovernmental agreement entered into in order to conform to, that Directive or connection with the Luxembourg Law implementation of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State such Sections of the European UnionCode; or
(j) 8) any combination of Section 3.02(a), the instances described in the preceding clauses.
(b)) With respect to clause (a)(5) above, (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable in the absence of evidence satisfactory to or for the account of any Holder Company or the applicable Guarantor, it may conclusively presume that a holder of a beneficial interest in an Offered Security if such payment would not is entitled to a refund or credit of all amounts required to be subject to such withholding or deduction of Taxes but for the failure of a Holder withheld. The Company or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the applicable Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable pay any Additional Amounts to any Holder or the holder of a beneficial interest in an Offered Security that who is a fiduciary, partnership, limited liability company fiduciary or partnership or other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only Security to the extent that a beneficiary or settlor with respect to the such fiduciary, or a member of such partnership or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entitythereof, would not have been entitled to the payment of an such Additional Amount Amounts had the such beneficiary, settlor, member or beneficial owner or member received directly its beneficial or distributive share been the holder of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 2 contracts
Samples: Indenture (Transocean Ltd.), Indenture (Transocean Ltd.)
Payment of Additional Amounts. (a) All payments made (including any premium paid upon redemption of the Notes) by or on behalf of the Guarantor under Issuer or with a successor in respect to of the Guarantees Notes or the Guarantors or a successor in respect of the Note Guaranties will be made free and clear of of, and without withholding or deduction for or on account of of, any present or future taxes, duties, leviesassessments, imposts, assessments or other governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf of Brazil, the United States or any authority therein or thereof or any other jurisdiction in which the Issuer or the Guarantors (or in each case, their successor) are organized or doing business or from or through which payments are made in respect of the Notes, or any political subdivision or taxing authority thereof or therein (any of the aforementioned being a “Taxing Jurisdiction (“TaxesJurisdiction”), unless the Guarantor is required to withhold Issuer or deduct Taxes the Guarantors (or their respective successor) are compelled by law to deduct or by the interpretation withhold such taxes, duties, assessments, or administration thereofgovernmental charges. In such event, the event that Guarantor is required to Issuer or the Guarantors (or their respective successor) will make such deduction or withholding, make payment of the amount so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect withheld to the Guarantees, the Guarantor will appropriate governmental authority and pay such additional amounts as may be necessary to ensure that the net amounts received by registered Holders of Notes after such withholding or deduction shall equal the respective amounts of principal and interest (or other amounts stated to be payable under the Notes) which would have been received in respect of the Notes in the absence of such withholding or deduction (“Additional Amounts”) as may be necessary so that ). Notwithstanding the net amount received by each holder of Securities (including Additional Amounts) after foregoing, no such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will shall be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holderpayable:
(i) is or was present or engaged into, or is or was treated as present or engaged into a third party on behalf of, a trade or business Holder who is liable for such Taxes in respect of such Note by reason of the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had existence of any present or former connection between such Holder (other than the mere fact of ownership or between a fiduciary, settlor, beneficiary, member or shareholder of such SecuritiesHolder, if such Holder is an estate, a trust, a partnership, or a corporation) with and the relevant Taxing Jurisdiction imposing Jurisdiction, including, without limitation, such TaxesHolder (or such fiduciary, including settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or being treated as being or having been engaged in a resident thereoftrade or business or present therein or having, or having had, a permanent establishment therein, other than the mere holding of the Note or enforcement of rights under this Indenture and the receipt of payments with respect to the Note;
(ii) in respect of Taxes that would not have been so withheld or deducted if the notes had been surrendered or presented for payment (if surrender or presentment is required) not more than 30 days after the Relevant Date except to the extent that payments under such Note would have been subject to with holdings and the Holder of such Note would have been entitled to such Additional Amounts, on surrender of such Note for payment on the last day of such period of 30 days;
(iii) with respect to, or to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding companythird party on behalf of, a passive foreign investment companyHolder who is liable for such Taxes by reason of such Holder’s failure to comply, with any certification, identification, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder, if (1) compliance is required by law or an applicable income treaty as a controlled foreign corporationprecondition to, a foreign tax exempt organization exemption from, or corporation reduction in the rate of, the Tax and (2) the Issuer has given the Holders at least 30 days’ notice that has accumulated earnings Holders will be required to avoid United States federal income tax; orprovide such certification, identification, documentation or other requirement;
(iv) owns or owned 10% or more in respect of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securitiesor similar Tax, except other than as otherwise provided hereinin Section 4.06(i);
(cv) in respect of any Taxes imposed solely as a result Tax which is payable other than by deduction or withholding from payments of principal of (including premium) or interest on the Note; or
(vi) in respect of any combination of the presentation of such Securities above.
(where presentation is requiredb) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except Notwithstanding anything to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result contrary in this Section 4.06, none of the failure of such holder Issuer, the Guarantors, their respective successors, the Paying Agent or any other person shall be required to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) pay any Additional Amounts with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to imposed under Sections 1471 through 1474 of the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest paymentsCode, or any amendment thereof, successor law or any law regulation implementing or complying with, or introduced in order to conform to, that Directive such sections, or imposed pursuant to any intergovernmental agreement or any agreement entered into pursuant to section 1471(b)(1) of the Luxembourg Law of December 23, 2005, as amended;Code.
(ic) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). No Additional Amounts will not shall be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date paid with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required any payment on a Note to provide such declaration or claim. Additional Amounts also will not be payable to any a Holder or the holder of a beneficial interest in an Offered Security that who is a fiduciary, a partnership, a limited liability company or other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only that payment to the extent that payment would be required by the relevant Taxing Jurisdiction to be included in the income, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership, an interest holder in a limited liability company or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, who would not have been entitled to the payment of an Additional Amount Amounts had the that beneficiary, settlor, member or beneficial owner been the Holder.
(d) Payments on the Notes are subject in all cases to any tax, fiscal or member received directly its beneficial other law or distributive share regulation or administrative or judicial interpretation. Except as specifically provided above, neither the Issuer nor the Guarantors shall be required to pay Additional Amounts with respect to any Tax imposed by any government or a political subdivision or taxing authority thereof or therein.
(e) In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or withholding of withholding taxes in excess of the payment. In additionappropriate rate applicable to the Holder of such Notes, no Additional Amounts and, as a result thereof such Holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess to the Issuer.
(f) Any reference in this Indenture or the Notes to principal, interest or any other amount payable in respect of the Notes by the Issuer or the Note Guaranties by the Guarantors (or their successors) will be paid deemed also to refer to any Additional Amount, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this Section.
(g) Each of the Issuer and the Guarantors covenants that if any of the Issuer or the Guarantors, as applicable, is required under applicable law to make any deduction or withholding on payments of principal of or interest on the Notes for or on account of any tax, duty, assessment or other governmental charge, at least 10 days prior to the first payment date on the Notes and at least 10 days prior to each payment date thereafter where such withholding is required, the Issuer or the Guarantor, as applicable, shall furnish the Trustee and the Paying Agent with an Officer’s Certificate (but only if there has been any change with respect to the matters set forth in any previously delivered Officer’s Certificate) instructing the Trustee and the Paying Agent as to whether such payment of principal of or interest on the Notes shall be made without deduction or withholding for or on account of any tax, duty, assessment or other governmental charge, or, if any such deduction or withholding shall be required by the Taxing Jurisdiction, then such certificate shall: (i) specify the amount required to be deducted or withheld on such payment to the relevant recipient; (ii) certify that the Issuer or the Guarantors, as applicable, shall pay such deduction or withholding amount to the appropriate taxing authority; and (iii) certify that the Issuer or the Guarantors, as applicable, shall pay or cause to be paid to the Trustee or the Paying Agent such Additional Amounts as are required by this Section 4.06.
(h) Each of the Issuer and the Guarantors (or their respective successor) will pay any Taxes imposed required to be deducted or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) applicable law and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld furnish to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered SecuritiesHolders, within 90 60 days after the date the such payment of any Taxes so deducted or withheld is due pursuant to applicable lawdue, either certified copies of tax receipts evidencing such payment by the Guarantor or ifpayment, notwithstanding Guarantor’s efforts to obtain or, if such receipts, the same receipts are not obtainable, other evidence of such payments reasonably satisfactory to the Holders.
(i) The Issuer or the Guarantors, as applicable, will pay when due any present or future stamp, transfer, court or documentary taxes or any other excise or property taxes, charges or similar levies and any penalties, additions to tax or interest due with respect thereto imposed by Guarantor. At least 30 days prior a Taxing Jurisdiction (or any political subdivision or governmental authority thereof or therein having power to each date on which any payment under or tax) with respect to the Guarantees is due initial execution, delivery or registration of the Notes or any other document or instrument relating thereto.
(j) The obligations of the Issuer and payable, if the Guarantor will be obligated Guarantors pursuant to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II Section 4.06 shall survive any termination of the or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, payment of the Securities Notes and/or resignation or removal of the Trustee or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofPaying Agent.
Appears in 2 contracts
Samples: Indenture (Azul Sa), Indenture (Azul Sa)
Payment of Additional Amounts. All payments made by the Company or the Guarantor under or with respect to the Guarantees Securities and any Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless the Guarantor Company or Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that the Company or Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Securities or the Guarantees, as the Guarantor case may be, the Company or Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Global Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a national citizen or resident thereof or thereof, being treated as being or having been a resident thereofthereof or being or having been physically present therein;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign private foundation or other foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or;
(iv) actually or constructively owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or Guarantor within the Guarantor;meaning of Section 871(h)(3) of the Code; or
(v) is or was a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3) of the Code.
(b) any estate, inheritance, gift, sales, transfer, excise or excise, personal property or similar Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed or withheld solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute statute, regulation, ruling or regulation administrative practice of the relevant Taxing Jurisdiction or by any applicable tax treaty to which the relevant Taxing Jurisdiction is a party as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Company or a Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 2003, European Council Directive 2014/48 EU of March 14, 2014 or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26 and 27, 2000, on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State member country of the European Union; or;
(j) any withholding or deduction required pursuant to sections 1471 through 1474 of the Code, any regulations or agreements thereunder, official interpretations thereof, or any law, rule, guidance or administrative practice implementing an intergovernmental agreement entered into in connection with such sections of the Code; or
(k) any combination of Section 3.02(aXxxxxxx 0000(x), (bx), (cx), (dx), (ex), (fx), (gx), (h) and (ix). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claimj). Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered a Global Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In additionThe Company or Guarantor, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of as the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor case may be, will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor Company or Guarantor, as applicable, will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor Company or Guarantor, as the case may be, will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company or Guarantor or if, notwithstanding the Company’s or applicable Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by the Company or Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Securities or Guarantees is due and payable, if the Company or a Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company or Guarantor will deliver to the Trustee an Officer’s Officers’ Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. In addition, the Company will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in Luxembourg or the United States or any political subdivision or taxing authority of or in the foregoing in respect of the creation, issue, offering, enforcement, redemption or retirement of the Securities. The provisions of this Article II Fifteen shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Company or a Guarantor or any successor Person to the Guarantor Company or Guarantor, as the case may be, is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Company or Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor Company or applicable Guarantor, as the case may be, shall be substituted for the date on which the Offered series of Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or electronic (i.e., “pdf” or “tif”) transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or electronic (i.e., “pdf” or “tif”) transmission shall be deemed to be their original signatures for all purposes.
Appears in 2 contracts
Samples: Indenture (DH Europe Finance II S.a.r.l.), Indenture (DH Europe Finance II S.a.r.l.)
Payment of Additional Amounts. (a) All payments made (or deemed to be made) to a holder of the Notes by the a Guarantor under or with respect pursuant to the Guarantees will any Guarantee shall be made free and clear of and without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, impostsimpost, assessments assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of any Canadian government (or, with respect to any Guarantor (or any successor thereof) incorporated or organized outside the United States or Canada, the government of the country in which such Guarantor (or any successor thereof) is incorporated, organized or a tax resident) or political subdivision or territory or authority or agency therein or thereof having the power to tax (each a “Non-U.S. Taxing Jurisdiction (“TaxesAuthority”), unless the Guarantor obligor thereon is required to withhold or deduct Taxes by under any law or by the interpretation interpretation, application or administration thereof. In the event that Guarantor .
(b) If any such obligor is so required to so withhold or deduct any amount for of or on account of any Taxes imposed by a Non-U.S. Taxing Authority from any payment made under or with respect to any Guarantee, such obligor shall pay, as additional interest, to each Holder or beneficial owner of the Guarantees, Notes that are outstanding on the Guarantor will pay date of the required payment such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities such Holder or beneficial owner (including the Additional Amounts) after such withholding or deduction will equal (including withholdings and deductions on Additional Amounts) shall not be less than the amount that such Holder or beneficial owner would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will shall be payable with respect to a payment made to a holder Holder or beneficial owner of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder Notes (an “Excluded Holder”):
(1) which is subject to taxation on such Taxes by reason of the fact that it does not deal at arm’s length (within the meaning of the Income Tax Act (Canada)) with the Parent Guarantor or any other Guarantor resident in Canada for tax purposes at the time of payment, if such payment is made by a relevant Taxing Jurisdiction for any reason the Parent Guarantor or such other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing JurisdictionCanadian Guarantor;
(ii2) has or had any present or former connection (other than the mere fact which is subject to such Taxes by reason of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including its being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) connected with respect to any withholding Taxes imposed Non-U.S. Taxing Authority other than by the United Statesmere holding or ownership, is or was with respect to the United States a personal deemed holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more ownership of the total combined voting power of all classes of stock of the Company Notes or the Guarantor;
receipt of payments thereunder or under any Guarantee or the enforcement of rights under the Notes, this Indenture or any Guarantee (b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) matter of, for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided forexample, whichever is latercitizenship, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity domicile, or connection with existence of a business or permanent establishment, a dependent agent, a place of business or a place of management present or deemed present within the Non-U.S. Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such TaxesAuthority);
(e3) with respect to withholding Taxes imposed by the United States, any where such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes Tax imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and Code, any current or future regulations promulgated thereunder or official interpretations thereof. The , any fiscal or regulatory legislation, rules or practices adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States, with respect to the forgoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code;
(4) which failed to duly and timely comply with a timely request of the Issuer or any Guarantor will also in writing to provide information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, entitlement to treaty benefits or identity, if and to the extent that (i) make such withholding or deduction of Taxes Holder and/or beneficial owner was legally able to comply with such request and (ii) due and timely compliance with such request is required by applicable law or administrative policy as a precondition to reduction or elimination of, and would have reduced or eliminated, any Taxes as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner but for this clause;
(5) which is a fiduciary or a partnership or not the sole beneficial owner of the relevant Note, if and to the extent that any beneficiary or settlor with respect to such fiduciary, any partner with respect to such partnership or any beneficial owner of such Note (as the case may be) would not have been entitled to receive Additional Amounts with respect to the payment in question had such beneficiary, settlor, partner or beneficial owner been the actual Holder of such Note;
(6) in respect of any estate, gift, inheritance, value added, excise, transfer, or similar tax; or
(7) any combination of the above clauses in this proviso. For the avoidance of doubt, no Additional Amounts will be owed for Taxes imposed by the United States government or any political subdivision or territory or authority or agency therein or thereof having the power to tax.
(c) The applicable obligor on the Notes, this Indenture or any Guarantee, as the case may be, shall also be entitled to make any withholding or deduction required by a Non-U.S. Taxing Authority or other taxing authority and remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction authority in accordance with all applicable lawslaw. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing applicable obligor on the payment of Notes, this Indenture or any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor willGuarantee, upon requestas the case may be, make available shall furnish to the holders of the Offered SecuritiesHolders, within 90 30 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts receipts, if any, evidencing that such payment has been made by the Guarantor or ifsuch obligor, notwithstanding Guarantor’s efforts to obtain such receiptsas applicable.
(d) In addition, the same Issuer and the Guarantors shall jointly and severally indemnify and hold harmless each Holder or beneficial owner (without duplication) of the Notes that are not obtainableoutstanding on the date of the required payment and upon written request reimburse each such Holder or beneficial owner for the amount of: (i) any Taxes so levied or imposed by a Non-U.S. Taxing Authority and paid by such Holder or beneficial owner (without duplication) as a result of payments made under or with respect to the Notes, this Indenture or any Guarantee (including, for greater certainty, any Taxes payable under Section 803 of the regulations under the Income Tax Act (Canada)), but excluding any Taxes with respect to which such Holder or beneficial owner is an Excluded Holder; and (ii) any Taxes imposed on such Holder or beneficial owner by a Non-U.S. Tax Authority (other evidence of than any Taxes with respect to which such payments by Guarantor. Holder or beneficial owner is an Excluded Holder) with respect to any reimbursement under clause (i) immediately above (collectively, a “Reimbursement Payment”).
(e) At least 30 days prior to each date on which any payment under or with respect to the Guarantees any Note is due and payable, if the any Guarantor will be becomes obligated to pay Additional Amounts with respect to such payment, the such Guarantor will shall deliver to the Trustee (or other applicable paying agent) an Officer’s Officers’ Certificate stating the fact that such Additional Amounts will shall be payable, payable and the amounts so payable and will shall set forth such other information as is necessary to enable such the Trustee (or other applicable paying agent) to pay such Additional Amounts to holders of Offered Securities Holders on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. .
(f) Whenever in this Indenture, the Securities or the Guarantees Indenture there is mentioned, in any context, (i) the payment of principal (and premium, if any), (ii) purchase prices in connection with a repurchase or a redemption priceof the Notes, (iii) interest or (iv) any other amount payable under on or with respect to any Securityof the Notes, this Indenture or the Guarantees, such mention shall be deemed to include mention of the payment of Additional Amounts and Reimbursement Payments provided for in this Section 2.18 to the extent that, in such context, Additional Amounts or Reimbursement Payments are, were or would be payable in respect thereof.
(g) The Issuer and the Guarantors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that are imposed by any Non-U.S. Taxing Authority from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture, the Guarantee or any other document or instrument in relation thereto (other than a transfer of the Notes). The obligations described in this Section 2.18 shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any successor person to the Issuer or any Guarantor and to any jurisdiction in which such successor is organized or is otherwise resident or doing business for tax purposes or any jurisdiction from or through which payment is made by such successor or its respective agents.
Appears in 2 contracts
Samples: Indenture (Ultra Petroleum Corp), Exchange Agreement (Ultra Petroleum Corp)
Payment of Additional Amounts. (a) All payments made by the Issuer in respect of the Notes or by a Note Guarantor under or with in respect to the Guarantees will of its Note Guarantee shall be made free and clear of and without deduction or withholding or deduction for or on account of any present or future taxes, duties, leviesassessments, imposts, assessments fees or other governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf of Mexico or any political subdivision or taxing authority thereof or therein or of any other jurisdiction in which the Issuer or any Note Guarantor is incorporated (any of the aforementioned, a “Taxing Jurisdiction (“TaxesJurisdiction”), unless such withholding or deduction is required by law.
(b) Subject to Section 3.17(c), if the Issuer or a Note Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct any amount for or on account law of any Taxes from Taxing Jurisdiction to make any payment made under such withholding or with respect to the Guaranteesdeduction, the Issuer or such Note Guarantor will shall pay to any Holder such additional amounts (“Additional Amounts”) as may be necessary so that every net payment made by the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation Issuer on such payment Note or by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership Note Guarantor in respect of the Offered Securities its Note Guarantee after deduction or withholding for or on account ofof any such Taxes shall not be less than the amount then due and payable on such Note.
(c) The obligation to pay Additional Amounts set forth in Section 3.17(b) shall not apply to:
(a1) any Taxes that are imposed or withheld solely because such holder or a fiduciarytax, settlerduty, beneficiaryassessment, or member of such holder if such holder is an estate, trust, partnership, limited liability company fee or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in governmental charge that would not have been imposed but for the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had existence of any present or former connection connection, including a permanent establishment or fixed base, between such Holder (or the beneficial owner of such Note) and Mexico other than the mere fact of ownership receipt of such Securities) with payment or the Taxing Jurisdiction imposing ownership or holding of such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereofNote;
(iii2) with respect to any withholding Taxes tax, duty, assessment, fee or other governmental charge that would not have been imposed but for the presentation by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation Holder of such Securities (where presentation is required) Note for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is occurs later;
(3) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(4) except in the case of liquidation, dissolution or winding-up of the Issuer, any tax, duty, assessment, fee or other governmental charge imposed in connection with a Note presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent; or
(5) any tax, duty, assessment, fee or other governmental charge or increase thereof to the extent that the beneficiary or holder thereof such amount would not have been entitled to the payment of Additional Amounts had the Securities been presented imposed or increased but for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of the Holder or the beneficial owner of such holder or any other person Note to comply with any applicable certification, informationdocumentation, documentation information or other reporting requirements requirement required by an applicable treaty, by law, or by regulation or administrative practice concerning the nationality, residence, identity or connection with the Taxing Jurisdiction taxing jurisdiction of the Holder or beneficial owner of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;Note.
(ed) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 calendar days prior to each date on which any payment under or with respect to the Guarantees Notes is due and payablepayable (or, as early as practicable, if the obligation to pay Additional Amounts arises after the 30th day prior to such date), if the Issuer or a Note Guarantor will be obligated to pay Additional Amounts with respect to such paymentpayment in an amount different than the Additional Amounts payable on the date hereof, the Issuer or such Note Guarantor will shall deliver to the Trustee an Officer’s Officers’ Certificate stating the fact that such Additional Amounts will be payable, payable and the amounts so payable payable, and will set setting forth such other information as is necessary to enable such the Trustee to pay such Additional Amounts to holders of Offered Securities Holders on the payment date. The provisions Copies of this Article II such Officers’ Certificate shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person be made available to the Guarantor is organized or is engaged in business for tax purposes or Paying Agent upon request therefor. In the absence of any political subdivisions or taxing authority or agency thereof or therein; provided, howeversuch certificate, the date Trustee and the Paying Agent may assume that no such deduction or withholding shall be required. The Issuer agrees to indemnify the Trustee and the Paying Agent for, and to hold each harmless against, any loss, liability or expense incurred without bad faith on which the Guarantor changes its jurisdiction their part arising out of or in which it is organized connection with actions taken or such Person becomes a successor omitted by them in reliance, absent manifest error, on any certificate furnished pursuant to this Section 3.17(d) or not furnished. Any certificate required by this Section 3.17(d) to be provided to the Guarantor shall be substituted for Trustee and the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention Paying Agent shall be deemed to include mention be duly provided if telecopied to, and received by, the Trustee. The obligations of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.Issuer under this Section
Appears in 2 contracts
Samples: Indenture (Vitro Sa De Cv), Indenture (Vitro Sa De Cv)
Payment of Additional Amounts. All payments made by the Guarantor under Unless either inapplicable to a particular series or with respect specifically deleted or modified in or pursuant to the Guarantees Officer’s Certificate or any supplemental indenture establishing such series of Notes or in the form of note for such series, each of the Parent, BATIF and BATNF will be made free and clear of and make payments pursuant to the applicable Guarantee without withholding or deduction for or on account of any present or future taxestax, dutieslevy, levies, imposts, assessments impost or other similar governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction charge (“Taxes”) imposed, assessed, levied or collected by or for the account of the United Kingdom (in the case of a payment by the Parent or BATIF) or The Netherlands (in the case of a payment by BATNF), including in each case any political subdivision thereof or any authority thereof having the power to tax (a “Relevant Taxing Jurisdiction”), unless the such withholding or deduction is required by law. If any such Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor is required a Relevant Taxing Jurisdiction to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Guaranteessuch Taxes, the such Guarantor will pay to the Holder such additional amounts (“Additional Amounts”) as may be necessary so that will result in the net amount receipt by the Holder of such amounts as would have been received by each holder of Securities (including Additional Amounts) after it if no such withholding or deduction will equal the amount that such Holder would have received if such of Taxes had not been required; provided, however, that no Guarantor shall be required to be withheld or deducted; provided that no pay any Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed would not have been so imposed, assessed, levied or withheld solely because such holder collected but for the Holder or beneficial owner of the applicable Note or Guarantee (or a fiduciary, settlersettlor, beneficiary, member or member shareholder of, or possessor of a power over, such holder Holder, if such holder Holder is an estate, trust, partnership, limited liability company partnership or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(icorporation) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen domiciliary, national or resident thereof of, or being treated as engaging or having been engaged in a trade or business, maintaining or having maintained a permanent establishment or being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding companyphysically present in, a passive foreign investment companyRelevant Taxing Jurisdiction or otherwise having or having had some connection with a Relevant Taxing Jurisdiction other than the holding or ownership of, or the collection of principal of, and premium (if any) or interest on, a controlled foreign corporation, a foreign tax exempt organization Note or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more the enforcement of the total combined voting power of all classes of stock of applicable Note or Guarantee, as the Company or the Guarantorcase may be;
(b) any estateTaxes that would not have been so imposed, inheritanceassessed, giftlevied or collected but for the fact that, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date required in order to receive payment, the applicable Note or Guarantee was presented more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly was provided for, whichever is later, except to the extent that the beneficiary Holder or holder beneficial owner thereof would have been entitled to the payment of Additional Amounts had the Securities applicable Note or Guarantee been presented for payment on any date day during such 30-day period;
(c) any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(d) any Taxes imposed solely as a result that are payable otherwise than by withholding or deduction from payments on or in respect of the applicable Note or Guarantee;
(e) any Taxes that would not have been so imposed, assessed, levied or collected but for the failure by the Holder or the beneficial owner of such holder the applicable Note or Guarantee to (i) provide any other person to comply with applicable certification, identification, information, documentation documents or other reporting requirements evidence concerning the nationality, residence, residence or identity of the Holder or the beneficial owner or its connection with the a Relevant Taxing Jurisdiction of Jurisdiction; or (ii) make any valid or timely declaration or claim or satisfy any other reporting, information or procedural requirements relating to such holdermatters if, if such in either case, compliance is required by statute statute, regulation, relevant income tax treaty or regulation administrative practice of the relevant a Relevant Taxing Jurisdiction as a precondition condition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and provisions), any current or future U.S. Treasury regulations promulgated thereunder or thereunder, any official interpretations thereof. The Guarantor will also thereof or any agreements entered into in connection with the implementation thereof (i“FATCA Withholding”); or
(g) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders combination of the Offered SecuritiesTaxes described in clauses (a) through (f) above. In addition, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are Additional Amounts will not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or be paid with respect to any payment of the Guarantees principal of, or premium (if any) or interest on, any Note or any payment pursuant to the applicable Guarantee to any Holder that is due and payablea fiduciary, if a partnership, a limited liability company or any person other than the Guarantor will be obligated sole beneficial owner of such payment to pay Additional Amounts the extent a beneficiary or settlor with respect to such paymentfiduciary, a member of such partnership, an interest holder in such limited liability company or a beneficial owner that would not have been entitled to such amounts had such beneficiary, settlor, member, interest holder or beneficial owner been the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination Holder of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor applicable Note or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; providedGuarantee. Unless otherwise stated, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, references in any context, context to the payment of principal of, and premium, premium (if any) or interest on, redemption price, interest any Note or any other amount payable under or with respect payment pursuant to any Security, such mention shall a Guarantee will be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 2 contracts
Samples: Indenture (Reynolds American Inc), Indenture (British American Tobacco p.l.c.)
Payment of Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor under or with respect to the Guarantees Securities or any Guarantee, as applicable, will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxestax, dutiesduty, levieslevy, impostsimpost, assessments assessment or other similar governmental charges of whatever nature imposed charge, including any interest, additions to tax, or penalties applicable thereto (collectively, “Taxes”) unless such withholding or deduction is required by law. In the event that any such withholding or deduction for, or on account of, any Taxes is levied by or on behalf of:
(i) Bermuda or any other jurisdiction in which the Company or any Guarantor is incorporated or organized, has its place of central management or central control or is otherwise engaged in business or resident for tax purposes or any political subdivision or taxing authority thereof (other than the United States or any political subdivision or taxing authority thereof); or
(ii) any jurisdiction from or through which payment is made by or on behalf of the Company or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision or taxing authority thereof (other than the United States or any political subdivision or taxing authority thereof); (each of clauses (i) and (ii), a “Relevant Taxing Jurisdiction (“TaxesJurisdiction”), unless the Guarantor is required to withhold Company or deduct Taxes by law or by the interpretation or administration thereof. In relevant Guarantor, as the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Guaranteescase may be, the Guarantor will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder Holder (or beneficial owner) of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such the Holder (or beneficial owner) would have received if such the Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment made to a holder of Holder to the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofextent:
(a1) that any Taxes that are would not have been so imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member but for the existence of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection between the Holder (or beneficial owner of the Securities) and the Relevant Taxing Jurisdiction, other than any connection arising solely from the mere fact receipt of the payment, acquisition, ownership or disposition of such Securities or the exercise or enforcement of rights under the Securities) with , the Taxing Jurisdiction imposing such Taxes, including being Guarantees or having been a citizen or resident thereof or being treated as being or having been a resident thereofthis Indenture;
(iii2) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise transfer or personal property Taxes imposed with respect to the SecuritiesSecurities or any other Taxes payable other than by withholding or deduction, except as described below or as otherwise provided hereinin this Indenture;
(c3) that any such Taxes would not have been imposed solely as a result of but for the presentation of such Securities (the Securities, where presentation is required) , for payment on a date more than 30 days after the date on which such the payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder Holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d4) any Taxes imposed solely as a result of that the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder beneficial owner of a beneficial interest in an Offered Security if such payment Securities would not be liable or subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residenceexemption, if the Company were treated as a domestic corporation under United States federal income tax and if if: (xa) the making of such the declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority taxing authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and ; (yb) at least 90 60 days prior to the first payment date with respect to which the Company or such Guarantor shall apply this paragraphclause (iv), the Company or such Guarantor shall have notified all Holders of Offered Securities in writing that they or any beneficial owners of the Securities shall be required to provide this declaration or claim; and (c) the Holder or beneficial owner of Securities is legally eligible to provide such declaration or claim. Additional Amounts also will not be payable ;
(5) any Taxes imposed under Sections 1471 through 1474 of the Code, any successor law or regulation implementing or complying with, or introduced in order to conform to, such Sections, any agreement entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any Holder such intergovernmental agreement;
(6) any Taxes imposed on overall net income or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent any branch profits Taxes;
(7) that a beneficiary or settlor with respect to the a fiduciary, a member of a partnership or a the beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, payment would not have been entitled to the payment of an Additional Amount Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of a Security in the case of a Holder that is a fiduciary or member received directly its partnership or a person other than the sole beneficial owner of any such payment;
(8) or distributive share any combination of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed and/or withholdings or withheld pursuant to Sections 1471 deductions described in the foregoing clauses (1) through 1474 of the Code (or any amended or successor version that is substantively comparable7).
(b) The Company and any current or future regulations promulgated thereunder or official interpretations thereof. The such Guarantor will shall also (i) make withhold or deduct such withholding or deduction of Taxes and as required; (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction taxing authority in accordance with all applicable laws. The Guarantor will ; (iii) use its commercially reasonable efforts to obtain from each relevant taxing authority imposing the Taxes certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, withheld; and (iv) upon request, make available to the holders Holders of the Offered Securities, within 90 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax Tax receipts evidencing such payment by the Company or such Guarantor or ifand, notwithstanding the Company’s or such Guarantor’s efforts to obtain such the receipts, if the same are not obtainable, other evidence of such payments by Guarantorpayments. Each Holder and beneficial owner of the Securities agrees that it shall, upon the request of an applicable withholding agent, provide an applicable IRS Form W-8 or W-9 to the applicable withholding agent.
(c) In addition, the Company or any Guarantor will pay any stamp, issue, registration, documentary or other similar Taxes payable in any Relevant Taxing Jurisdiction or the United States with respect to the creation, issue, offering, enforcement, redemption or retirement of the Securities or Guarantees.
(d) At least 30 days prior to each date on which any payment under or with respect to the Guarantees Securities is due and payable, if the Company or any Guarantor will be becomes obligated to pay Additional Amounts with respect to such payment, the Guarantor will Company (or in respect of the Guarantees, such Guarantor) shall deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, and the amounts so payable and will set forth such other information as is necessary to enable such the Trustee or the Paying Agent to pay such Additional Amounts to holders of Offered Securities the Holders on the payment date. The provisions of this Article II shall survive any termination of the discharge of .
(e) All references in this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal of and premium, if any, redemption priceAdditional Amounts, if any, or interest (including defaulted interest), if any, or any other amount payable under on or with respect to any Security, such mention of the Securities shall be deemed to include mention of the payment of Additional Amounts provided for in this Section 3.08 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to the provisions of this Section 3.08, and express mention of the payment of Additional Amounts in those provisions in this Indenture shall not be construed as excluding Additional Amounts where such express mention is not made (if applicable).
(f) The obligations of the Company and any Guarantor under this Section 3.08 shall survive the termination of this Indenture and the payment of all amounts under or with respect to this Indenture and the Securities, and any transfer by a Holder or beneficial owner of its Securities.
Appears in 2 contracts
Samples: Indenture (Nabors Industries LTD), Indenture (Nabors Industries LTD)
Payment of Additional Amounts. All Unless otherwise required by law, an Issuer will not deduct or withhold from payments made by the such Issuer or a Guarantor under or with respect to the Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless the Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor an Issuer is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Securities or the Guarantees, the Guarantor such Issuer will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided provided, that no Additional Amounts will not be payable with respect to a payment made to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settlersettlor, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person Person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;; or
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company an Issuer or the a Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (Securities, where presentation is required) , for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the such Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person Person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the an Issuer or a Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a14.02(a), (b), (c), (d), (e), (f), and (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder of Securities or the holder of a beneficial interest in an Offered Security such Securities if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a such Holder or the holder of a beneficial interest in an Offered Security such Securities to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company each Issuer were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority taxing authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which each Issuer or the Guarantor shall apply this paragraph, each Issuer or the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered a Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees Securities of a series is due and payable, if the an Issuer or Guarantor will be obligated to pay Additional Amounts with respect to such payment, the such Issuer or Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such the Trustee to pay such Additional Amounts to holders of Offered such Securities on the payment date. The provisions of this Article II XIV shall survive any termination of or the discharge of this an Indenture and shall apply mutatis mutandis to any jurisdiction in which the an Issuer or Guarantor or any successor Person to the Guarantor such Issuer is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees Guarantees, there is mentioned, in any context, the payment of principal and principal, premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 2 contracts
Samples: Indenture (ADT Inc.), Indenture (ADT Inc.)
Payment of Additional Amounts. (a) All payments made by the Guarantor under Issuer or with the Guarantors in respect to of the Guarantees Notes and the Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, leviesassessments, imposts, assessments fees or other governmental charges of whatever nature (and any fines, penalties or interest related thereto) imposed or levied by or on behalf of the Cayman Islands or Brazil or, following any merger, consolidation, transfer, liquidation, winding-up, dissolution or assumption of obligations permitted hereunder, the jurisdiction in which the resulting, surviving or transferee Person is incorporated, resident for tax purposes or treated as engaged in business, or, in each case, any political subdivision thereof or taxing authority therein (each, a “Taxing Jurisdiction (“TaxesJurisdiction”), unless the Guarantor such withholding or deduction is required to withhold or deduct Taxes by law or by the interpretation or administration thereoflaw. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Guaranteesevent, the Issuer or a Guarantor will pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary so in order that every net payment made by the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities Issuer or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation Guarantor on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities each Note after deduction or withholding for or on account of:
(a) of any Taxes that are present or future tax, penalty, fine, duty, assessment or other governmental charge imposed upon or withheld solely because such holder or as a fiduciary, settler, beneficiary, or member result of such holder if payment by the Taxing Jurisdiction will not be less than the amount then due and payable on such holder is an estateNote. The foregoing obligation to pay Additional Amounts, trusthowever, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holderwill not apply to:
(i) is any tax, assessment or was present or engaged in, or is or was treated as present or engaged in, a trade or business in other governmental charge which would not have been imposed but for the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had existence of any present or former connection between such Holder (other than the mere fact of ownership or between a fiduciary, settlor, beneficiary, member or shareholder of such SecuritiesHolder, if such Holder is an estate, a trust, a partnership or a corporation) with or beneficial owner, on the one hand, and the Taxing Jurisdiction imposing Jurisdiction, on the other hand, including, without limitation, such TaxesHolder (or such fiduciary, including settlor, beneficiary, member or shareholder) or beneficial owner being or having been a citizen or resident thereof or being treated as being or having been engaged in a resident thereoftrade or business or present therein or having, or having had, a permanent establishment therein, but not including the mere receipt of such payment or the ownership or holding of such Note;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(bii) any estatetax, inheritance, gift, sales, transfer, excise assessment or personal property Taxes other governmental charge which would not have been so imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of but for the presentation of by such Securities Holder for payment (where presentation is required) for payment on a date more than 30 thirty calendar days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is occurs later, except to ;
(iii) the extent that the beneficiary taxes, duties, assessments or holder thereof other governmental charges would not have been entitled to the payment of Additional Amounts had the Securities been presented imposed but for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder Holder or any other person beneficial owner to comply with applicable any certification, information, documentation identification or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, the Holder if (a) such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling regulation or administrative practice other applicable law of the relevant such Taxing Authority Jurisdiction as a precondition to an exemption fromfrom all or a part of such tax, assessment or reduction in, the relevant Taxes, other governmental charge and (yb) at least 90 thirty calendar days prior to the first payment date with respect to on which the Issuer or each of the Guarantors applies this clause (iii) the Issuer or such Guarantor shall apply this paragraph, the Guarantor shall will have notified all Holders of Offered Securities in writing that they some or all Holders shall be required to provide comply with such declaration requirement;
(iv) any estate, inheritance, gift, sales, transfer or claim. personal property tax or similar tax;
(v) any tax, assessment or governmental charge payable other than by deduction or withholding from payments of principal or of interest on the Note; or
(vi) any combination of items (i) through (v) above.
(b) The Issuer or the Guarantors shall also pay any present or future stamp, court or documentary taxes or any other excise taxes, charges or similar levies which arise in any jurisdiction from the execution, delivery, registration or the making of payments in respect of the Notes, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside of any Taxing Jurisdiction other than those resulting from, or required to be paid in connection with, the enforcement of the Notes following the occurrence of any Default or Event of Default (each as defined below).
(c) No Additional Amounts also will not shall be payable paid with respect to any a payment on a Note or under the Guarantee to a Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company fiduciary or partnership or other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only payment to the extent that a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of such partnership or beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the receive payment of an the Additional Amount Amounts had the beneficiary, settlor, member or beneficial owner been the Holder.
(d) The Issuer or member received directly its beneficial or distributive share the Guarantors will provide the Trustee with the official acknowledgment of the paymentrelevant taxing authority (or, if such acknowledgment is not available, a certified copy thereof, if available) evidencing the payment of taxes in any Taxing Jurisdiction in respect of which the Issuer or a Guarantor has paid any Additional Amounts. In addition, no Additional Amounts Copies of such documentation will be paid on account of any Taxes imposed made available to the Holders or withheld pursuant to Sections 1471 through 1474 of the Code Paying Agents, as applicable, upon request therefor.
(e) The Issuer or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also the Guarantors will:
(i) make at least ten Business Days prior to the first Interest Payment Date for any Notes (and at least ten Business Days prior to each succeeding Interest Payment Date or any Redemption Date if there has been any change with respect to the matters set forth in the below mentioned Officer’s Certificate), deliver to the Trustee and each Paying Agent an Officer’s Certificate (i) specifying the amount, if any, of taxes described in this Section 4.10 imposed or levied by or on behalf of any Taxing Jurisdiction (the “Relevant Withholding Taxes”) required to be deducted or withheld on the payment of principal or interest on the Notes to Holders and the Additional Amounts, if any, due to Holders in connection with such withholding or deduction of Taxes payment, and (ii) remit certifying that the full amount of Taxes so deducted Issuer or withheld any Guarantor will pay such deduction or withholding;
(ii) prior to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing due date for the payment of thereof, pay any Taxes so deducted such Relevant Withholding Taxes, together with any penalties or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, interest applicable thereto;
(iii) within 90 thirty calendar days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable lawpaying such Relevant Withholding Taxes, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an and the Paying Agent evidence of such payment and of the remittance thereof to the relevant taxing or other authority as described in this Section 4.10; and
(iv) pay any Additional Amounts due to Holders on any Interest Payment Date or Redemption Date to the Trustee in accordance with the provisions of this Section 4.10.
(f) Any Officer’s Certificate stating the fact that such Additional Amounts will required by this Section 4.10 to be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person provided to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal Trustee and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall each Paying Agent will be deemed to be duly provided if sent by pdf or facsimile to the Trustee and each Paying Agent.
(g) All references in this Indenture to principal of and interest hereon shall include mention of the payment of any Additional Amounts to payable by the extent that, in such context, Additional Amounts are, were Issuer or would be payable a Guarantor in respect thereofof such principal and such interest.
Appears in 2 contracts
Payment of Additional Amounts. All payments made by or on behalf of the Guarantor Company under or with respect to the Guarantees any Securities of any series (or by any Guarantor with respect to any Guarantee) will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless the Guarantor Company (or such Guarantor) is required to withhold or deduct such Taxes by law law. If the Company (or by the interpretation or administration thereof. In the event that Guarantor any Guarantor) is so required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the GuaranteesSecurities of any series any amount for or on account of any Taxes imposed under (1) any jurisdiction in which the Company (or any Guarantor) is then incorporated, organized, engaged in business or resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein or (2) any jurisdiction from or through which payment is made by or on behalf of the Company (or any Guarantor) (including the jurisdiction of any paying agent for the Securities of such series) or any political subdivision or taxing authority or agency thereof or therein (including the jurisdiction of any paying agent) (each of (1) and (2), a “Taxing Jurisdiction”), the Guarantor Company (or such Guarantor) will pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities Holder (including Additional Amounts) after such withholding or deduction will equal not be less than the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that provided, however, no Additional Amounts will be payable to a Holder with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofto:
(a) any Taxes that are would not have been imposed but for the existence of any actual or withheld solely because deemed present or former connection between the Holder or the beneficial owner of the Securities of such holder series (or between a fiduciary, settlersettlor, beneficiary, member or member shareholder of, or possessor of such holder a power over, the relevant Holder or beneficial owner, if such holder the Holder or beneficial owner is an estate, a nominee, trust, partnership, limited liability company partnership or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(icorporation) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in and the relevant Taxing Jurisdiction or has or had (including being a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (resident of such jurisdiction for Tax purposes), other than the mere fact of ownership holding of such Securities) with Security, the Taxing Jurisdiction imposing enforcement of rights under such Taxes, including being Security or having been under a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more Guarantee of the total combined voting power of all classes of stock of the Company such Security or the Guarantorreceipt of any payments in respect of such Security or Guarantee;
(b) any Taxes imposed as a result of the presentation of a Security of such series for payment more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had such Security been presented on the last day of such 30 day period);
(c) any estate, inheritance, gift, sales, transferpersonal property, excise transfer or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day periodsimilar Taxes;
(d) any Taxes withheld, deducted or imposed solely as on a result of the failure of such holder payment to an individual that are required to be made pursuant to European Council Directive 2003/48/EC or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning directive implementing the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation conclusions of the relevant Taxing Jurisdiction as a precondition ECOFIN Council meeting of November 26 and 27, 2000 on the taxation of savings income, or any law implementing or complying with or introduced in order to relief or exemption from conform to, such Taxesdirective;
(e) Taxes imposed on or with respect to a payment made to a Holder or beneficial owner of Securities of such series who would have been able to avoid such withholding Taxes imposed or deduction by presenting the United States, any such Taxes imposed by reason relevant Security to another paying agent in a member state of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the CodeEuropean Union;
(f) any Taxes that are payable by any method other than by deduction or withholding from payments under, or deduction by the Guarantor or the Company with respect to, such Securities or any paying agent from payments in respect Guarantee of such Securities;
(g) any Taxes required to be imposed or withheld by reason of the failure of the Holder or beneficial owner of Securities of such series, to comply with any paying agent from reasonable written request of the Company addressed to the Holder and made at least 60 days before any payment in respect of any Securities if such payment can be made without such withholding or deduction would be payable to satisfy any certification, identification, information or other reporting requirements, whether required by at least one other paying agentstatute, treaty, regulation or administrative practice of a Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Taxing Jurisdiction), but in each case, only to the extent the Holder or beneficial owner is legally entitled to provide such certification or documentation;
(h) any Taxes required Tax imposed on or with respect to be deducted any payment by the Company or withheld pursuant the relevant Guarantor to the European Council Directive 2003/48/EC Holder if such Holder is a fiduciary or partnership or person other than the sole beneficial owner of June 3, 2003 such payment to the extent that Taxes would not have been imposed on such payment had such Holder been the taxation sole beneficial owner of savings income in the form Securities of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;such series; or
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State combination of the European Union; or
above items listed in clauses (ja) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), through (h) above. In addition to the foregoing, the Company and the Guarantors will also pay and indemnify the Holder for any present or future stamp, issue, registration, court or documentary Taxes, or any other excise or property Taxes, charges or similar levies (iincluding penalties, interest and any other reasonable expenses related thereto) which are levied by any Taxing Jurisdiction on the execution, delivery, issuance, or registration of any of the Securities, this Indenture, any Guarantee or any other document or instrument referred to therein (other than on or in connection with a transfer of any Security other than the initial resale of such Security). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if If the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered SecurityGuarantor, as the case may be. This exception, however, becomes aware that it will apply only be obligated to the extent that a beneficiary or settlor pay Additional Amounts with respect to the fiduciaryany payment under or with respect to any Securities or any Guarantee, or a beneficial owner or member each of the partnershipCompany or the relevant Guarantor, limited liability company or other fiscally transparent entityas the case may be, would not have been entitled will deliver to the Trustee on a date that is at least 30 days prior to the date of that payment of (unless the obligation to pay Additional Amounts arises less than 30 days prior to that payment date, in which case the Company or the relevant Guarantor shall notify the Trustee promptly thereafter) an Additional Amount had Officer’s Certificate stating the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no fact that Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant payable and the amount estimated to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereofbe so payable. The Officer’s Certificate(s) must also set forth any other information necessary to enable the paying agent to pay such Additional Amounts to Holders on the relevant payment date. The Company and the relevant Guarantor will also (i) provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Company or the relevant Guarantor will make such withholding or deduction of Taxes all withholdings and (ii) deductions required by law and will remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction Tax authority in accordance with all applicable lawslaw. The Company or the relevant Guarantor will use its commercially reasonable efforts to obtain certified copies of tax Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxeswithheld. The Company or the relevant Guarantor will, upon request, make available will furnish to the holders of the Offered SecuritiesTrustee, within 90 days a reasonable time after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable lawmade, certified copies of tax Tax receipts evidencing such payment by the Guarantor Company or a Guarantor, as the case may be, or if, notwithstanding Guarantorsuch entity’s efforts to obtain such receipts, the same receipts are not obtainableobtained, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect (reasonably satisfactory to the Guarantees is due and payableTrustee) by such entity. Upon reasonable request, if copies of Tax receipts or other evidence of payments, as the Guarantor case may be, will be obligated to pay Additional Amounts with respect to such payment, made available by the Guarantor will deliver Trustee to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination Holder or beneficial owners of the discharge of Securities. Wherever in this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal (and premium, if any), redemption priceinterest, interest if any, or any other amount payable under or with respect to any SecuritySecurity or any Guarantee, such mention shall will be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The above obligations will survive any termination, defeasance or discharge of this Indenture, any transfer by a Holder or beneficial owner of its Securities, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Company or any Guarantor is incorporated, engaged in business or otherwise resident for tax purposes or any jurisdiction from or through which such Person makes any payment on any Securities (or any Guarantee) and any department or political subdivision thereof or therein.
Appears in 2 contracts
Samples: Indenture (Signet Jewelers LTD), Indenture (Sterling Jewelers LLC)
Payment of Additional Amounts. All payments made by the Company or the Guarantor of principal of, and premium (if any) and interest on or in respect of the Securities or under or with respect to the Guarantees will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by any jurisdiction in which the Company or on behalf of the Guarantor, as the case may be, is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction Jurisdiction”), or any jurisdiction through which the Company or the Guarantor makes payments (each, as applicable and together with the Relevant Taxing Jurisdiction, a “TaxesRelevant Jurisdiction”), unless the Guarantor such withholding or deduction is required to withhold or deduct Taxes by law or by regulation or governmental policy having the interpretation or administration thereofforce of law. In the event that Guarantor any such withholding or deduction is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Guaranteesrequired, the Guarantor Company or the Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary so that will result in receipt by the net amount Holder of the Security of such amounts as would have been received by each holder of Securities (including Additional Amounts) after such Holder had no such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided required, except that no Additional Amounts will shall be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or payable:
(1) for or on account of:
(a) any Taxes tax, duty, assessment or governmental charge that are would not have been imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holderbut for:
(i) is the existence of any present or was former connection between the Holder or beneficial owner of such Security and the Relevant Jurisdiction, other than merely holding such Security or the receipt of payments thereunder or under the Guarantee, including, without limitation, such Holder’s or beneficial owner’s being or having been a national, domiciliary or resident of such Relevant Jurisdiction or treated as a tax resident thereof or being or having been physically present or engaged in, or is or was treated as present or engaged in, in a trade or business in the Taxing Jurisdiction therein or has having or having had a permanent establishment in the Taxing Jurisdictiontherein;
(ii) has or had any present or former connection (other than the mere fact of ownership presentation of such SecuritiesSecurity (where presentation is required) with more than 30 days after the Taxing Jurisdiction imposing later of the date on which the payment of the principal of, premium, if any, or interest on, such Taxes, including being or having been a citizen or resident Security became due and payable pursuant to the terms thereof or being treated as being was made or having duly provided for, except to the extent that the Holder thereof would have been a resident thereofentitled to such Additional Amounts if it had presented such Security for payment on any date within such 30-day period;
(iii) the failure of the Holder or beneficial owner to comply with respect a request of the Company or the Guarantor, as the case may be, addressed to the Holder, to provide information concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction, if compliance with such request is required under the tax laws of the Relevant Jurisdiction in order to reduce or eliminate any withholding Taxes imposed by the United States, is or was with respect deduction as to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings which Additional Amounts would have otherwise been payable to avoid United States federal income taxsuch Holder; or
(iv) owns or owned 10% or more the presentation of such Security (where presentation is required) for payment in the total combined voting power of all classes of stock of the Company or the GuarantorRelevant Jurisdiction, unless such Security could not have been presented for payment elsewhere;
(b) any estate, inheritance, gift, salessale, transfer, excise or personal property Taxes imposed with respect to the Securitiesor similar tax, except as otherwise provided hereinassessment or other governmental charge;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor that is imposed or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes levied on a payment to an individual and is required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC or any other Directive implementing the conclusions of June 3the ECOFIN Council meeting of November 26-27, 2003 2000 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amendedsuch Directives;
(id) any withholding or deduction that is imposed or levied on a payment made that is required to be made pursuant to laws enacted by Switzerland providing for Taxes which would not have been imposed if the relevant Securities had been presented taxation of payments according to another paying agent principles similar to those laid down (y) in a Member State of the European UnionCouncil Directive 2003/48/EC or (z) in the draft legislation proposed by the Swiss Federal Council on August 24, 2011, in particular the principle to have a person other than an issuer or guarantor withhold or deduct the tax, including, without limitation, any paying agent;
(e) any U.S. taxes, duties, assessments or other governmental charges; or
(jf) any combination of Section 3.02(ataxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c), (d), ) or (e), ; or
(f), (g), (h2) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company partnership or person other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only any payment to the extent that that, under the laws of a Relevant Jurisdiction, such payment would be required to be included in the income for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, who would not have been entitled to the payment of an such Additional Amount Amounts had the that beneficiary, settlor, partner or beneficial owner or member received directly its beneficial or distributive share of been the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect Holder thereof.
Appears in 2 contracts
Samples: Indenture (Syngenta Ag), Indenture (Syngenta Finance N.V.)
Payment of Additional Amounts. (a) All payments made by the Guarantor under Issuer or the Note Guarantors under, or with respect to to, the Guarantees will Notes shall be made free and clear of of, and without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, impostsimpost, assessments assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of any Mexico, Spain, the Netherlands, or, in the event that the Issuer appoints additional paying agents, by the jurisdictions of such additional paying agents (a “Taxing Jurisdiction (“TaxesJurisdiction”), ) unless the Guarantor Issuer or such Note Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof. In .
(b) If the event that Issuer or any Note Guarantor is so required to so withhold or deduct any amount for for, or on account of any of, such Taxes from any payment made under or with respect to the GuaranteesNotes, the Guarantor will Issuer or such Note Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities Holder (including Additional Amounts) after such withholding or deduction will equal shall not be less than the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided provided, however, that no the foregoing obligation to pay Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holderdoes not apply to:
(i) any Taxes imposed solely because at any time there is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in connection between the Holder and a Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact purchase of the Notes, or receipt of a payment or the ownership or holding of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;Note),
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(bii) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes or similar Tax imposed with respect to the Securities, except as otherwise provided herein;Notes,
(ciii) any Taxes imposed solely as a result of because the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder Holder or any other person fails to comply with applicable any certification, information, documentation identification or other reporting requirements requirement concerning the nationality, residence, identity or connection with the a Taxing Jurisdiction of such holder, the Holder or any beneficial owner of the Note if such compliance is required by statute or regulation the applicable law of the relevant Taxing Jurisdiction as a precondition to relief exemption from, or exemption from reduction in the rate of, the tax, assessment or other governmental charge, and we have given the Holders at least 30 days’ notice that Holders shall be required to provide such Taxes;information and identification; provided, however, this clause (iii) shall not apply if the provision of information, documentation or other evidence described in this clause (iii) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of the Notes than comparable information or other reporting requirements imposed under U.S. tax law, regulation (including proposed regulations) and administrative practice,
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(fiv) any Taxes that are payable otherwise than by any method other than deduction or withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;on the Notes,
(gv) any Taxes required imposed on a payment to be withheld by any paying agent from any payment in respect or for the benefit of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld an individual pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereofother directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;such directives,
(ivi) any withholding or deduction for Taxes which that would not have been imposed if avoided by presenting for payment (where presentation is required) the relevant Securities had been presented Note to another paying agent in a Member State of the European Union; oragent,
(jvii) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to such Note presented for payment more than 30 days after the date on which the Guarantor shall apply this paragraphpayment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the Guarantor shall have notified all extent that the Holders of Offered Securities in writing that they shall be required such Note would have been entitled to provide such declaration or claim. Additional Amounts also will not be payable on presenting such Note for payment on any date during such 30 day period, and
(viii) any payment on the Note to any a Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company fiduciary or partnership or a person other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of any such beneficial interests of such Offered Securitypayment, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the such fiduciary, a member of such a partnership or a the beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, payment would not have been entitled to the payment of an Additional Amount Amounts had the beneficiary, settlor, member or beneficial owner or member received directly its beneficial or distributive share been the Holder of the payment. In addition, no Additional Amounts will be paid on account Note.
(c) The obligations in Section 3.21(a) and Section 3.21(b) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxes imposed or withheld pursuant Taxing Jurisdiction with respect to Sections 1471 through 1474 of any successor to the Code (Issuer or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereofNote Guarantor, as the case may be. The Guarantor will also Issuer or such Note Guarantor, as applicable, shall (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable lawslaw. The Guarantor will Issuer or such Note Guarantor, as applicable, shall use its commercially all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority Jurisdiction imposing such Taxes. The Guarantor will, upon request, make available Taxes and shall furnish such certified copies to the holders of the Offered Securities, Trustee within 90 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable lawlaw or, certified copies of if such tax receipts evidencing are not reasonably available to the Issuer or such Note Guarantor, furnish such other documentation that provides reasonable evidence of such payment by the Guarantor Issuer or ifsuch Note Guarantor, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect as applicable.
(d) The exception to the Guarantees is due and payable, if the Guarantor will be obligated Issuer’s obligations to pay Additional Amounts pursuant to clause (iii) of Section 3.21(b) will not apply with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes taxes imposed by Mexico or any political subdivisions subdivision or taxing authority thereof if the Issuer can otherwise obtain the application of the lower withholding tax rate in effect, unless (i) the provision of the information, documentation or agency thereof other evidence described in the applicable clause of Section 3.21(b) is expressly required by statute, regulation or therein; providedpublished administrative practice of general applicability, however(ii) the Issuer cannot obtain the information, documentation or other evidence necessary to comply with the date applicable laws and regulations on which its own through reasonable diligence and without requiring it from holders of the Guarantor changes its jurisdiction in which it is organized Notes and (iii) the Issuer otherwise would meet the requirements set forth under applicable law and regulations. In addition, clause (iii) of Section 3.21(b) does not require that any person, including any non-Mexican pension fund, retirement fund, financial institution or such Person becomes any other holder or beneficial owner of a successor Note, register with the Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) or the Mexican Tax Revenue Service (Servicio de Administración Tributaria) to the Guarantor shall be substituted establish eligibility for the date on which the Offered Securities was issued. Whenever an exemption from, or a reduction of, Mexican withholding tax.
(e) Any reference in this Indenture, the Securities any supplemental indenture or the Guarantees there is mentionedNotes to principal, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or in respect of the Notes by the Issuer shall be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this subsection.
(f) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 3.21 are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, and without any Securityfurther action, such mention shall be deemed to include mention have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to us. However, by making such assignment, the payment of Additional Amounts Holder makes no representation or warranty that we shall be entitled to the extent that, in receive such context, Additional Amounts are, were claim for a refund or would be payable in credit and incurs no other obligation with respect thereofthereto.
Appears in 2 contracts
Samples: Indenture (Cemex Sab De Cv), Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. (a) All payments made by the Co-Issuers under or with respect to the Notes or by a Guarantor under or with respect to the Guarantees will its Note Guarantee shall be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature Taxes imposed or levied by or on behalf of any Taxing Jurisdiction Authority in any jurisdiction in which a Co-Issuer or any Guarantor is organized or is otherwise resident for tax purposes or any jurisdiction from or through which payment is made (each a “TaxesRelevant Taxing Jurisdiction”), unless the such Co-Issuer or Guarantor is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof. In the event that .
(b) If a Co-Issuer or any Guarantor is required to so withhold or deduct any amount for or on account of any Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the GuaranteesNotes or the Note Guarantee of such Guarantor, the Guarantor will Co-Issuers or the relevant Guarantor, as applicable, shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities Holder (including Additional Amounts) after such withholding or deduction will shall equal the amount that such the Holder would have received if such Taxes had not been required to be withheld or deducted; provided provided, however, that no Additional Amounts will be shall payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofTax:
(a1) any Taxes that are imposed would not have been imposed, payable or withheld solely because such holder or a fiduciary, settler, beneficiary, or member due but for the existence of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection between the Holder (or the beneficial owner of, or person ultimately entitled to obtain an interest in, such Notes) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) other than the mere fact holding of ownership the Notes or enforcement of rights under such Note or under a Guarantee or the receipt of payments in respect of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being Note or having been a citizen or resident thereof or being treated as being or having been a resident thereofGuarantee;
(iii2) with respect that would not have been imposed, payable or due but for the failure to satisfy any withholding Taxes certification, identification or other reporting requirements whether imposed by statute, treaty, regulation or administrative practice; provided, however, that the United States, is or was with respect Co-Issuers have delivered a request to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings Holder to avoid United States federal income tax; or
(iv) owns or owned 10% or more of comply with such requirements at least 30 days prior to the total combined voting power of all classes of stock of the Company or the Guarantordate by which such compliance is required;
(b3) any that would not have been imposed, payable or due if the presentation of Notes (where presentation is required) for payment had occurred within 30 days after the date such payment was due and payable or was duly provided for, whichever is later;
(4) subject to Section 4.20(e), that is an estate, inheritance, gift, sales, transferexcise, excise transfer or personal property Taxes imposed with respect to the Securitiestax, except as otherwise provided herein;assessment or charge; or
(c5) any Taxes imposed solely as a result of a combination of the presentation foregoing clauses (1) through (4). In addition, Additional Amounts shall not be payable if, had the beneficial owner of, or Person ultimately entitled to obtain an interest in, such Notes been the Holder of the Notes, such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof beneficial owner would not have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
clause (f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a1), (b2), (c3), (d), 4) or (e), (f), (g), (h5) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the paymentabove. In addition, no Additional Amounts will shall not be paid on account of payable with respect to any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that Tax which is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such payable otherwise than by withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with in respect to the Guarantees is due and payableof principal of, or any interest or Additional Interest, if the Guarantor will be obligated to pay Additional Amounts with respect to such paymentany, on, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor Notes or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Guarantee.
(c) Whenever in this Indenture, the Securities Indenture or the Guarantees Notes there is mentioned, in any context, the payment of amounts based upon the principal and amount of the Notes or of principal, premium, if any, redemption price, interest or Additional Interest, if any, or of any other amount payable under or with respect to any SecurityNote, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(d) The Co-Issuers shall provide the Trustee with documentation evidencing the payment of Additional Amounts and any other amounts payable pursuant to Section 4.20(e).
(e) The Co-Issuers and the Guarantors shall pay for any present or future stamp, court or documentary taxes, or any similar taxes, charges or levies which arise in any Relevant Taxing Jurisdiction from the execution, delivery or registration of the Notes, this Indenture or any other document or instrument referred to therein, or the receipt of any payments with respect to or enforcement of, the Notes or any Guarantee. The Co-Issuers and the Guarantors shall indemnify the Holders for any stamp taxes required to be paid in Argentina which arise from the execution, delivery or registration of this Indenture, the Notes or any other documents or instruments referred to herein or therein or the receipt of any payments with respect to or enforcement of, the Notes or any Guarantee.
(f) Notwithstanding anything to the contrary contained in this Indenture, the Co-Issuers and the Guarantors may, to the extent required to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America from any payments under this Indenture; provided that the foregoing shall not limit the obligation of the Co-Issuers and the Guarantors to pay Additional Amounts as set forth in this Section 4.20.
Appears in 2 contracts
Samples: Indenture (Petrolera San Antonio S.A.), Indenture (Navios Maritime Holdings Inc.)
Payment of Additional Amounts. All (a) Any and all payments made by the Guarantor Company, the Paying Agent or the Restricted Subsidiaries or First Priority Guarantors to the First Priority Holders, under or with respect to the Guarantees will First Priority Securities shall be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature Taxes imposed or levied by or by, on behalf of of, or within any Relevant Taxing Jurisdiction (“Withholding Taxes”), unless the Guarantor withholding or deduction of such Withholding Taxes is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor is any Withholding Taxes are required to be so withhold withheld or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Guaranteesdeducted, the Guarantor Company will and will cause its Restricted Subsidiaries to, and the First Priority Guarantors will, (i) pay such additional amounts (“Additional Amounts”) as may be necessary so that will result in receipt by the net amount First Priority Holders of such amounts as would have been received by each holder of Securities (including Additional Amounts) after them had no such withholding or deduction will equal been required, (ii) deduct or withhold such Withholding Taxes and (iii) remit the full amount that so deducted or withheld to the relevant taxing or other authority. Notwithstanding the foregoing, no such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will shall be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(ai) any Withholding Taxes that are which would not have been imposed or withheld solely because such holder or levied on a fiduciary, settler, beneficiary, or member First Priority Holder but for the existence of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection between the First Priority Holder, or beneficial owner of the First Priority Security, and the applicable Relevant Taxing Jurisdiction, including, without limitation, such First Priority Holder or beneficial owner (other than the mere fact of ownership of such Securitiesi) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof of the applicable Relevant Taxing Jurisdiction, (ii) maintaining or being treated as having maintained an office, permanent establishment, fixed base or branch in the applicable Relevant Taxing Jurisdiction or (iii) being or having been present or engaged in trade or business in the applicable Relevant Taxing Jurisdiction, except for a resident thereof;
(iii) with respect to connection solely arising from the mere ownership of, or receipt of payment under, such First Priority Security or interest therein or any withholding Taxes imposed other debt or equity security issued by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
Company (iv) owns or owned 10% or more of the total combined voting power of all classes of stock including any Capital Stock of the Company or any of its Subsidiaries, or interest therein), or the Guarantorexercise of rights under such First Priority Security or this First Priority Indenture;
(bii) any estate, inheritance, gift, sales, transfer, excise Withholding Taxes that are imposed or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed levied by reason of the failure by the First Priority Holder or beneficial owner of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered First Priority Security to make a valid comply with any certification, identification, information, documentation, declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate reporting requirement which is required or imposed by a statute, treaty, regulation, ruling general rule, or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction inin the rate of, the relevant imposition, withholding, or deduction of any Withholding Taxes; provided, however, that at least sixty (60) days prior to (x) the first payment date with respect to which the Company shall apply this Section 4.2(a)(ii), and (y) in the event of a change in such certification, identification, information, documentation, declaration, or other reporting requirement, the first payment date subsequent to such change, the Company shall have notified the First Priority Indenture Trustee, in writing, that the First Priority Holders or beneficial owners of the First Priority Securities will be required to provide such certification, identification, information or documentation, declaration, or other reporting and provided, further, that such First Priority Holder or beneficial owner of such First Priority Security is legally able or entitled to provide such certification, identification, information, documentation, declaration or other information;
(iii) any Withholding Taxes that are imposed or levied by reason of the failure by the First Priority Holder or beneficial owner of such First Priority Security to comply on a timely basis (subject to the conditions set forth below) with a written request by or on behalf of the Company to provide for tax purposes information, documentation or other evidence concerning the nationality, tax residency, identity, or registration with the Ministry of Finance and Public Credit of Mexico (the “Finance Ministry”) of the First Priority Holder or beneficial owner of such First Priority Security that is necessary from time to time to determine the appropriate rate of deduction or withholding of Withholding Taxes applicable to such First Priority Holder or beneficial owner; provided, however, that at least 90 sixty (60) days prior to the first payment date with respect to which the Guarantor Company shall apply this paragraphSection 4.2(a)(iii), the Guarantor Company shall have notified all the First Priority Indenture Trustee, in writing, that such First Priority Holders or beneficial owners of Offered the First Priority Securities in writing that they shall will be required to provide such information, documentation or other evidence;
(iv) except as otherwise provided, any estate, inheritance, gift, sales, transfer, or personal property or similar tax, assessment or other governmental charge; or
(v) any combination of items (i), (ii), (iii), or (iv) above.
(b) Notwithstanding the provisions of Section 4.2(a), the limitations on the Company’s or a First Priority Guarantor’s obligation to pay and to cause its Restricted Subsidiaries to pay Additional Amounts set forth in Section 4.2(a)(ii) and (iii) above shall not apply if the provision of the certification, identification, information, documentation, declaration or claim. Additional Amounts also will not other evidence described in Section 4.2(a)(ii) and (iii) would be payable materially more onerous, in form, in procedure or in the substance of information disclosed, to any a First Priority Holder or the holder beneficial owner of a beneficial interest in an Offered First Priority Security that is a fiduciary(taking into account any relevant differences between U.S. law and the law of the applicable Relevant Taxing Jurisdiction, partnership, limited liability company regulation or administrative practice) than comparable information or other fiscally transparent entityapplicable reporting requirements imposed or provided for under U.S. federal income tax law (including the United States-Mexico Income Tax Treaty), or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the paymentregulation (including proposed regulations) and administrative practice. In addition, no Additional Amounts will be paid the limitations on account of any Taxes imposed or withheld pursuant the Company’s obligation to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) pay and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use cause its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated Restricted Subsidiaries to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II in Section 4.2(a)(ii) and (iii) above shall survive any termination of the discharge of this Indenture and shall not apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofRule 3.
Appears in 2 contracts
Samples: Indenture (Satelites Mexicanos Sa De Cv), Indenture (Satelites Mexicanos Sa De Cv)
Payment of Additional Amounts. All payments made by the Company or any Guarantor under or with respect to the Securities and the Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless the Guarantor Company or Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that the Company or Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Securities or the Guarantees, as the Guarantor case may be, the Company or Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Global Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i1) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii2) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a national citizen or resident thereof or thereof, being treated as being or having been a resident thereofthereof or being or having been physically present therein;
(iii3) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign private foundation or other foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv4) actually or constructively owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the a Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or excise, personal property or similar Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed or withheld solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Company or a Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 2003, or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26 and 27, 2000, on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or;
(j) any withholding or deduction required pursuant to sections 1471 through 1474 of the Code, any regulations or agreements thereunder, official interpretations thereof, or any law implementing an intergovernmental approach thereto; or
(k) any combination of Section 3.02(aXxxxxxx 00.00(x), (bx), (cx), (dx), (ex), (fx), (gx), (hx), (x) and (ij). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered a Global Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered a Global Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 60 days prior to the first payment date with respect to which Tyco or the Guarantor Company shall apply this paragraph, Tyco or the Guarantor Company shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered a Global Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In additionThe Company or Guarantor, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of as the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor case may be, will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor Company or Guarantor, as applicable, will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor Company or Guarantor, as the case may be, will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company or Guarantor or if, notwithstanding the Company’s or applicable Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by the Company or Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Securities or Guarantees is due and payable, if the Company or a Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company or Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. In addition, the Company will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in Luxembourg or the United States or any political subdivision or taxing authority of or in the foregoing in respect of the creation, issue, offering, enforcement, redemption or retirement of the Securities. The provisions of this Article II XIV shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Company or a Guarantor or any successor Person to the Guarantor Company or Guarantor, as the case may be, is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Company or Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor Company or applicable Guarantor, as the case may be, shall be substituted for the date on which the Offered series of Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 2 contracts
Samples: Indenture (TYCO INTERNATIONAL PLC), Indenture (TYCO INTERNATIONAL PLC)
Payment of Additional Amounts. All payments made by the Guarantor under or with respect to the Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless the Guarantor a) The Company is required by Mexican law to deduct and to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any certain Taxes from payments of interest and amounts deemed interest to investors who are not residents of Mexico for tax purposes, and shall pay to any payment made under or with respect to the Guarantees, the Guarantor will pay Holder such additional amounts (“Additional Amounts”) as may be necessary so that on those payments to the net amount received extent described in this Section 3.21. To the extent Taxes imposed by each holder of Securities Mexico or any political subdivision or taxing authority thereof or therein (including Additional Amounts“Mexican Taxes”) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been are required to be withheld or deducted; provided that no deducted from any payments under the Notes or the Note Guarantees, the Company or the relevant Restricted Subsidiaries (the “Payor,” as applicable) shall pay such Additional Amounts will as may be payable with respect necessary to a payment ensure that the net amount actually received by such Holder after any such withholding or deduction of Mexican Taxes is equal to a holder of the Offered Securities amount that the Holder would have received had no such withholding or a holder of a beneficial interests in the Offered Securities where such holder is subject deduction been required.
(b) The Payor shall not pay Additional Amounts to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or Holder for or on account of:
(a) of any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holderthe following:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in any Taxes imposed solely because of the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had existence of any present or former connection between such Holder and Mexico (other than the mere fact receipt of a payment or the ownership or holding of such Securities) with a Note or enforcement of rights in respect of the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereofNotes);
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(bii) any estate, inheritance, gift, sales, transfertransfer or similar tax, excise assessment or personal property Taxes other governmental charge imposed with respect to the Securities, except as otherwise provided hereinNotes;
(ciii) any Taxes imposed solely because the Holder or any other Person fails to comply with any certification, identification, information, documentation or other similar reporting requirement if (A) such compliance is required by law, regulation, or administrative practice, or an applicable treaty in effect as a result precondition to exemption from, or reduction in the rate of, deduction or withholding of any Taxes for which the presentation Payor is required to pay Additional Amounts, (B) the Holder or such other Person is legally entitled to comply with such reporting requirement and (C) at least 30 days prior to the first Interest Payment Date or Change of Control Payment Date with respect to which the Payor shall apply this Section 3.21(b)(iii), the Company or the Restricted Subsidiaries shall have notified the Holder that the Holder shall be required to comply with such Securities requirement;
(where presentation is requirediv) any Taxes that are payable otherwise than by deduction or withholding from payments on the Notes;
(v) any Taxes with respect to such Note presented for payment on a date more than 30 days after the date on which such the payment became due and payable or the date on which payment thereof is duly provided forfor and notice thereof given to Holders, whichever is occurs later, except to the extent that the beneficiary or holder thereof Holders of such Note would have been entitled to the payment of such Additional Amounts had the Securities been presented on presenting such Note for payment on any date during such 30-day period;; and
(dvi) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order Note to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company fiduciary or partnership or a person other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of any such beneficial interests of such Offered Securitypayment, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the such fiduciary, a member of such a partnership or a the beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, payment would not have been entitled to the payment of an Additional Amount Amounts had the beneficiary, settlor, member or beneficial owner or member received directly its beneficial or distributive share of been the payment. In additionHolder.
(c) Upon request, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit Payor shall provide the full amount of Taxes so deducted or withheld Trustee with documentation reasonably satisfactory to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts Trustee evidencing the payment of any Taxes deducted or withheld (including certified copies of any of returns submitted). The Payor shall make copies of such documentation available to the Holders or the Paying Agent upon request.
(d) Notwithstanding the foregoing, the exceptions to a Payor’s obligation to pay Additional Amounts set forth in Section 3.21(b)(iii) shall not apply if (i) the provision of information, certification, documentation or other evidence described in Section 3.21(b)(iii) would be substantially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note (taking into account any relevant differences between U.S. law, rules, regulations or administrative practice and those of the relevant taxing jurisdiction (Mexico, or any political subdivision or taxing authority thereof or therein)) than comparable information or other reporting requirements imposed under U.S. tax law, regulation and administrative practice (such as IRS Forms W-8BEN and W-9) or (ii) with respect to Taxes imposed by Mexico or any political sub-division or taxing authority thereof, (A) Article 195, Section II, of the Mexican income tax law (or a substantially similar successor of such provision) is in effect, unless the provision of the information, certification, documentation or other similar evidence described in Section 3.21(b)(iii) is expressly required by statute, rule or regulation, or an order of a competent authority based upon any such law or regulation, in order to apply Article 195, Section II, of the Mexican income tax law (or a substantially similar successor of such provision), (B) the Payor cannot obtain such information, certification, documentation or other similar evidence on its own through reasonable diligence and (C) the Payor otherwise would meet the requirements for application of Article 195, Section II, of the Mexican income tax law (or such successor of such provision). In addition, Section 3.21(b)(iii) shall not be construed to require that a non-Mexican pension or retirement fund or a non-Mexican financial institution or any other Holder register with the Ministry of Finance and Public Credit for the purpose of establishing eligibility for an exemption from or reduction of Mexican withholding tax or to require that a Holder or beneficial owner of a Note certify or provide information concerning whether it is or is not a tax-exempt pension or retirement fund.
(e) In the event that Additional Amounts actually paid with respect to the Notes pursuant to the preceding paragraphs are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and, as a result thereof, such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to the Payor. However, by making such assignment, the Holder makes no representation or warranty that the Payor shall be entitled to receive such claim for a refund or credit and Incurs no other obligation with respect thereto (including Incurring any expenses whatsoever necessary to obtain such refund or taking any other action).
(f) In the event a Payor conducts business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than Mexico or any political subdivision thereof and, as a result, is required by the law of such Additional Taxing Jurisdiction to deduct or withhold any amount on account of taxes imposed by such Additional Taxing Jurisdiction from payments under the Notes or the relevant Note Guarantee, as the case may be, which would not have been required to be so deducted or withheld but for such conduct of business in such Additional Taxing Jurisdiction, then all references to Mexico, Mexican law or regulations, and Mexican taxing authorities under this Section 3.21 shall be deemed to also include such Additional Taxing Jurisdiction and any political subdivision thereof, the laws or regulations of such Additional Taxing Jurisdiction and any taxing authority of such Additional Taxing Jurisdiction, respectively.
(g) The Company (or, failing which, the relevant Restricted Subsidiaries) shall pay any present or future stamp, court or documentary taxes, or any other excise or property taxes, charges or similar levies which arise in any jurisdiction from each Taxing Authority imposing such Taxes. The Guarantor willthe execution, upon request, make available to the holders delivery or registration of the Offered SecuritiesNotes, within 90 days after the date Note Guarantees or any other document or instrument referred to therein (other than a transfer of the payment Notes), or the receipt of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Note Guarantees, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than Mexico or any political subdivision thereof, other than those resulting from, or required to be paid in connection with, the enforcement of the Notes, the Note Guarantees is due and payable, if or any other such document or instrument following the Guarantor will be obligated to pay Additional Amounts occurrence of any Event of Default with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. Notes.
(h) The provisions of foregoing paragraphs in this Article II Section 3.21 shall survive any termination termination, defeasance or discharge of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor a Payor is organized or is engaged in business for tax purposes or any political subdivisions subdivision or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 2 contracts
Samples: Indenture (Iusacell S a De C V), Indenture (Inmobiliaria Montes Urales 460 S a De C V)
Payment of Additional Amounts. (a) All payments made by the Guarantor under Company in respect of the Notes or with the Guarantors in respect to of the Note Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, leviesassessments, imposts, assessments or other governmental charges of whatever nature imposed or levied by or on behalf of the Company’s, a Guarantor’s or any successor’s jurisdiction of incorporation or tax residence or the jurisdiction in which central management or control of the Company, such Guarantor or such successor, as applicable, is exercised, or in or through which payments are made in respect of the Notes or the Note Guarantees or, in each case, any political subdivision or governmental authority therein (each a “Relevant Taxing Jurisdiction (“TaxesJurisdiction”), unless the Company, such Guarantor or such successor is required to withhold or deduct Taxes compelled by law to deduct or by the interpretation withhold such taxes, duties, assessments, or administration thereofgovernmental charges. In such event, the event that Guarantor is required to relevant payor will make such deduction or withholding, make payment of the amount so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect withheld to the Guarantees, the Guarantor will appropriate governmental authority and pay such additional amounts (the “Additional Amounts”) as may be necessary so to ensure that the net amount received amounts receivable by each holder holders of Securities (including Additional Amounts) Notes after such withholding or deduction will (including any withholding or deduction in respect of such payment of Additional Amounts) shall equal the amount that such Holder respective amounts of principal and interest (and premium, if any) which would have received if been receivable in respect of the Notes in the absence of such Taxes had not been required to be withheld withholding or deducted; provided that no deduction. No such Additional Amounts will shall be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofpayable:
(a1) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiaryto, or member to a third party on behalf of, a Holder or beneficial owner who is liable for such taxes, duties, assessments or governmental charges in respect of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered Note by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in reason of the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had existence of any present or former connection between such Holder (other than the mere fact of ownership or between a fiduciary, settlor, beneficiary, member or shareholder of such SecuritiesHolder, if such Holder is an estate, a trust, a partnership, or a corporation) with or beneficial owner and the Relevant Taxing Jurisdiction imposing Jurisdiction, including, without limitation, such TaxesHolder (or such fiduciary, including settlor, beneficiary, member or shareholder) or beneficial owner being or having been a citizen or resident thereof or being treated or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein, other than the mere holding of the Note or enforcement of rights and the receipt of payments with respect to the Note;
(2) in respect of Notes surrendered (if surrender is required) more than 30 days after the Relevant Date except to the extent that payments under such Note would have been subject to withholding and the Holder or beneficial owner of such Note would have been entitled to such Additional Amounts, on surrender of such Note for payment on the last day of such period of 30 days;
(3) to, or to a third party on behalf of, a Holder or beneficial owner who is liable for such taxes, duties, assessments or other governmental charges by reason of such Holder’s or beneficial owner’s failure to comply with any certification, identification or other reporting requirement concerning the nationality, residence or identity of such Holder or beneficial owner or its connection with a Relevant Taxing Jurisdiction, if (a) compliance is required by such jurisdiction, or any political subdivision or authority thereof or therein having power to tax, as a precondition to exemption from, or reduction in the rate of, the tax, duty, assessment or other governmental charge and (b) the Company or any Guarantor has given the Holders at least 30 days’ notice that Holders will be required to provide such certification or identification or comply with such other requirement;
(4) in respect of any estate, inheritance, gift, sales, transfer, excise or personal property or similar tax, assessment or governmental charge;
(5) in respect of any tax, assessment or other governmental charge which is payable other than by deduction or withholding from payments of principal of, premium, if any, or interest on the Note or by direct payment by the Company or any Guarantor in respect of claims made against the Company or any Guarantor;
(6) in respect of United States federal withholding tax imposed by reason of a Holder or beneficial owner of a Note (i) being or having been a resident thereof;
bank, including any entity regulated as a bank or conducting a banking business, receiving payments on an extension of credit in the ordinary course of its lending business, (iiiii) with respect to any withholding Taxes imposed by the United States, is being or was with respect to the United States a personal holding company, a passive foreign investment company, having been a controlled foreign corporationcorporation for U.S. federal income tax purposes related, directly or indirectly, to the Company through stock ownership or a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States U.S. federal income tax; or
(iviii) owns being or owned having been an actual or constructive owner of 10% or more of the total combined voting power of all classes of stock entitled to vote of the Company or (iv) failing to provide an applicable IRS Form W-8 certifying as to such Person’s non-U.S. status;
(7) in respect of any tax, assessment, withholding or deduction required by Sections 1471 through 1474 of the Guarantor;Code (“FATCA”), any current or future Treasury regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction pursuant to the implementation of FATCA, or any agreement with the United States Internal Revenue Service pursuant to the implementation of FATCA; or
(8) in respect of any combination of the above.
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed No Additional Amounts shall be paid with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except Note to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that who is a fiduciary, a partnership, a limited liability company or other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only that payment to the extent that payment would be required by the laws of the Relevant Taxing Jurisdiction, or any political subdivision thereof, to be included in the income, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, an interest holder in the limited liability company or other fiscally transparent entity, a beneficial owner who would not have been entitled to the payment of an Additional Amount Amounts had the that beneficiary, settlor, member, interest holder or beneficial owner been the Holder. The Company or member received directly its beneficial or distributive share applicable Guarantor, as the case may be, will provide the Trustee and Paying Agent with the official acknowledgement of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially (or, if such acknowledgement is not available, other reasonable efforts to obtain certified copies of tax receipts documentation) evidencing the payment of any Taxes so deducted taxes, duties, assessments or withheld from each Taxing Authority imposing other governmental charges in respect of which the Company or such TaxesGuarantor, as the case may be, has paid any Additional Amounts. The Guarantor willCopies of such documentation will be provided to the Holders of the Notes, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. .
(c) At least 30 days prior to each date on which any payment under or with respect to the Guarantees Notes is due and payablepayable (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Guarantor Company or applicable Guarantor, as the case may be, will be obligated to pay Additional Amounts with respect to such payment, the Guarantor Company will deliver to the Trustee and Paying Agent an Officer’s Certificate stating the fact that such Additional Amounts will be payable, payable and the amounts so payable and will set forth such other information as is necessary to enable such Trustee the Paying Agent to pay remit such Additional Amounts to holders Holders of Offered Securities Notes on the payment date. Each such Officer’s Certificate shall be relied upon until receipt of a new Officer’s Certificate addressing such matters.
(d) The provisions of this Article II shall survive Company will pay any termination stamp, issue, excise, property, registration, documentary or other similar taxes and duties, including interest and penalties, imposed by a Relevant Taxing Jurisdiction in respect of the discharge creation, issue, delivery, registration and offering of the Notes or the execution of the Notes, the Note Guarantees or this Indenture Indenture. The Company will also pay and shall apply mutatis mutandis to indemnify each of the Trustee, the Paying Agent and the Holders and beneficial owners of the Notes from and against all court taxes or other taxes and duties, including interest and penalties, paid by any of them in any jurisdiction in which connection with any action permitted to be taken by the Guarantor or any successor Person Holders and beneficial owners to enforce the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, Company’s obligations under the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever Notes.
(e) Any reference in this Indenture, the Securities Indenture or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption priceNotes to principal, interest or any other amount payable under in respect of the Notes by the Company or the Note Guarantees by any Guarantor will be deemed also to refer to any Additional Amount, unless the context requires otherwise, that may be payable with respect to any Security, such mention that amount under the obligations referred to in this Section 4.18.
(f) The obligations of this Section 4.18 shall be deemed to include mention survive the termination or discharge of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthis Indenture.
Appears in 2 contracts
Samples: Senior Notes Indenture (Kosmos Energy Ltd.), Senior Notes Indenture (Kosmos Energy Ltd.)
Payment of Additional Amounts. All payments made by the Company or any Guarantor under or with respect to the Guarantees Securities and any Note Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless the Guarantor Company or any Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that the Company or any Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the GuaranteesSecurities or the Note Guarantee, as the case may be, the Guarantor Company or the applicable Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Global Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder (or the beneficial owner for whose benefit such holder holds such Securities) or a fiduciary, settlersettlor, beneficiary, member, shareholder or member other equity owner of, or possessor of a power over, such holder (or beneficial owner) if such holder (or beneficial owner) is an estate, trust, partnership, limited liability company company, corporation or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i1) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction (in each case, other than the mere fact of ownership of such Securities, without another presence or business in such Taxing Jurisdiction);
(ii2) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a national citizen or resident thereof or thereof, being treated as being or having been a resident thereofthereof or being or having been physically present therein;
(iii3) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign private foundation or other foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or;
(iv4) actually or constructively owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;applicable Guarantor within the meaning of Section 871(h)(3) of the Code; or
(5) is or was a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3) of the Code.
(b) any estate, inheritance, gift, sales, transfer, excise or excise, personal property or similar Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 15 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 3015-day period;
(d) any Taxes imposed or withheld solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute statute, regulation, ruling or regulation administrative practice of the relevant Taxing Jurisdiction or by any applicable tax treaty to which the relevant Taxing Jurisdiction is a party as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Company or a Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State country that is a member of the European Union; Union as of the date of this Indenture;
(i) any withholding or deduction required pursuant to sections 1471 through 1474 of the Code, any regulations or agreements thereunder, official interpretations thereof, any intergovernmental agreement, or any law, rule, guidance or administrative practice implementing an intergovernmental agreement entered into in connection with such sections of the Code or;
(j) any combination of Section 3.02(a15.02(a), (b), (c), (d), (e), (f), (g), (h) and or (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered a Global Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In additionThe Company or the applicable Guarantor, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of as the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor case may be, will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor Company or the applicable Guarantor, as the case may be, will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor Company or the applicable Guarantor, as the case may be, will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company or the applicable Guarantor or if, notwithstanding the Company’s or the applicable Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by the Company or the applicable Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees Securities or the Note Guarantee is due and payable, if the Company or a Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company or the applicable Guarantor will deliver to the Trustee an Officer’s Officers’ Certificate stating the fact that such Additional Amounts will be payable, payable and the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. In addition, the Company will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in Luxembourg or the United States or any political subdivision or taxing authority of or in the foregoing in respect of the creation, issue, offering, enforcement, redemption or retirement of the Securities. The provisions of this Article II 15 shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Company or a Guarantor or any successor Person to the Guarantor Company or a Guarantor, as the case may be, is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Company or the applicable Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor Company or the applicable Guarantor, as the case may be, shall be substituted for the date on which the Offered series of Securities was issued. Whenever in this Indenture, the Securities or the Guarantees Note Guarantee there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. The exchange of copies of this instrument and of signature pages by facsimile or.pdf transmission shall constitute effective execution and delivery of this instrument as to the parties hereto and may be used in lieu of the original instrument for all purposes. Signatures of the parties hereto transmitted by facsimile or .pdf shall be deemed to be their original signatures for all purposes.
Appears in 2 contracts
Samples: Senior Indenture (Medtronic PLC), Senior Indenture (Medtronic Inc)
Payment of Additional Amounts. (a) All payments made by the Co-Issuers under or with respect to the Notes or by a Guarantor under or with respect to the Guarantees will its Note Guarantee shall be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature Taxes imposed or levied by or on behalf of any Taxing Jurisdiction Authority in any jurisdiction in which a Co-Issuer or any Guarantor is organized or is otherwise resident for tax purposes or any jurisdiction from or through which payment is made (each, a “TaxesRelevant Taxing Jurisdiction”), unless the such Co-Issuer or Guarantor is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof. In the event that .
(b) If a Co-Issuer or any Guarantor is required to so withhold or deduct any amount for or on account of any Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the GuaranteesNotes or the Note Guarantee of such Guarantor, the Guarantor will Co-Issuers or the relevant Guarantor, as applicable, shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities Holder (including Additional Amounts) after such withholding or deduction will shall equal the amount that such the Holder would have received if such Taxes had not been required to be withheld or deducted; provided provided, however, that no Additional Amounts will be shall payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofTax:
(a1) any Taxes that are imposed would not have been imposed, payable or withheld solely because such holder or a fiduciary, settler, beneficiary, or member due but for the existence of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection between the Holder (or the beneficial owner of, or person ultimately entitled to obtain an interest in, such Notes) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) other than the mere fact holding of ownership the Notes or enforcement of rights under such Note or under a Guarantee or the receipt of payments in respect of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being Note or having been a citizen or resident thereof or being treated as being or having been a resident thereofGuarantee;
(iii2) with respect that would not have been imposed, payable or due but for the failure to satisfy any withholding Taxes certification, identification or other reporting requirements whether imposed by statute, treaty, regulation or administrative practice; provided, however, that the United States, is or was with respect Co-Issuers have delivered a request to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings Holder to avoid United States federal income tax; or
(iv) owns or owned 10% or more of comply with such requirements at least 30 days prior to the total combined voting power of all classes of stock of the Company or the Guarantordate by which such compliance is required;
(b3) any that would not have been imposed, payable or due if the presentation of Notes (where presentation is required) for payment has occurred within 30 days after the date such payment was due and payable or was duly provided for, whichever is later;
(4) subject to Section 4.20(e), that is an estate, inheritance, gift, sales, transferexcise, excise transfer or personal property Taxes imposed with respect to the Securitiestax, except as otherwise provided herein;assessment or charge; or
(c5) any Taxes imposed solely as a result of a combination of the presentation of foregoing clauses (1) through (4). In addition, Additional Amounts shall not be payable if the beneficial owner of, or person ultimately entitled to obtain an interest in, such Securities (where presentation is required) for payment on a date more than 30 days after Notes had been the date on which Holder and such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof beneficial owner would have been not be entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
clause (f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a1), (b2), (c3), (d), 4) or (e), (f), (g), (h5) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the paymentabove. In addition, no Additional Amounts will shall not be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or payable with respect to the Guarantees any Tax which is due and payablepayable otherwise than by withholding from any payment under, if the Guarantor will be obligated to pay Additional Amounts with or in respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor Notes or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Guarantee.
(c) Whenever in this Indenture, the Securities Indenture or the Guarantees Notes there is mentioned, in any context, the payment of amounts based upon the principal and amount of the Notes or of principal, premium, if any, redemption priceinterest, interest if any, or of any other amount payable under or with respect to any SecurityNote, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(d) Upon request, the Co-Issuers shall provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts.
(e) The Co-Issuers and the Guarantors shall pay any present or future stamp, court or documentary taxes, or any similar taxes, charges or levies which arise in any Relevant Taxing Jurisdiction from the execution, delivery or registration of the Notes, this Indenture or any other document or instrument referred to therein, or the receipt of any payments with respect to or enforcement of, the Notes or any Guarantee.
(f) Notwithstanding anything to the contrary contained in this Indenture, the Co-Issuers and the Guarantors may, to the extent required to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America from any payments under this Indenture; provided that the foregoing shall not limit the obligation of the Co-Issuers and the Guarantors to pay Additional Amounts as set forth in this Section 4.20.
Appears in 2 contracts
Samples: Indenture (Navios Maritime Holdings Inc.), Indenture (Navios Maritime Acquisition CORP)
Payment of Additional Amounts. All payments made by the Guarantor Company or any of the Guarantors under or with respect to the Securities and any Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless the Guarantor Company or any of the Guarantors, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor the Company or any of the Guarantors is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Securities or the Guarantees, as the Guarantor case may be, the Company or any of the Guarantors, as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Global Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder (or the beneficial owner for whose benefit such holder holds such Securities) or a fiduciary, settlersettlor, beneficiary, member, shareholder or member other equity owner of, or possessor of a power over, such holder (or beneficial owner) if such holder (or beneficial owner) is an estate, trust, partnership, limited liability company company, corporation or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction (in each case, other than the mere fact of ownership of such Securities, without another presence or business in such Taxing Jurisdiction);
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a national citizen or resident thereof or thereof, being treated as being or having been a resident thereofthereof or being or having been physically present therein;
(iii) with respect (in relation to any withholding Taxes imposed payments by the United States, Guarantors only) is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign private foundation or other foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) (in relation to payments by the Guarantors only) actually or constructively owns or owned 10% or more of the total combined voting power of all classes of stock of any of the Company or Guarantors within the Guarantormeaning of Section 871(h)(3) of the Code;
(b) Taxes imposed on any holder that is not the sole beneficial owner of the Securities, or a portion thereof, or that is a fiduciary or partnership, but only to the extent that a beneficiary or settlor with respect to the fiduciary, a beneficial owner or member of the partnership would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner, or member received directly its beneficial or distributive share of the payment;
(c) any estate, inheritance, gift, sales, transfer, excise or excise, personal property or similar Taxes imposed with respect to the Securities, except as otherwise provided herein;
(cd) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(de) any Taxes imposed or withheld solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, or identity of such holder or connection with the any Taxing Jurisdiction of by such holder, if such compliance is required by statute statute, regulation, ruling or regulation administrative practice of the relevant Taxing Jurisdiction or by any applicable tax treaty to which the relevant Taxing Jurisdiction is a party as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Company or a Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes withholding or deduction required to be deducted or withheld pursuant to sections 1471 through 1474 of the European Council Directive 2003/48/EC of June 3Code, 2003 on the taxation of savings income in the form of interest paymentsany regulations or agreements thereunder, official interpretations thereof, any intergovernmental agreement, or any amendment thereoflaw, rule, guidance or any law administrative practice implementing or complying with, or introduced an intergovernmental agreement entered into in order to conform to, that Directive or connection with such sections of the Luxembourg Law of December 23, 2005, as amended;Code; or
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a13.2(a), (b), (c), (d), (e), (f), (g), ) or (h) and (i). Additional Amounts will not be payable to The Company or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered SecurityGuarantors, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor Company or any of the Guarantors, as applicable, will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority taxing authority imposing such Taxes. The Guarantor Company or any of the Guarantors, as the case may be, will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor Company or any of the Guarantors or if, notwithstanding the Company’s or applicable Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by the Company or applicable Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Securities or any of the Guarantees is due and payable, if the Company or a Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company or applicable Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, payable and the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. In addition, the Company will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in the United Kingdom or the United States or any political subdivision or taxing authority of or in the foregoing in respect of the creation, issue, offering, enforcement, redemption or retirement of the Securities. The provisions of this Article II XIII shall survive any termination of or the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Company or a Guarantor or any successor Person person to the Guarantor Company or applicable Guarantor, as the case may be, is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Company or applicable Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor Company or applicable Guarantor, as the case may be, shall be substituted for the date on which the Offered Series of Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 2 contracts
Samples: Indenture (Omnicom Group Inc.), Indenture (Omnicom Finance Holdings PLC)
Payment of Additional Amounts. All payments made by the Company or any Guarantor under or with respect to the Securities and the Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless the Guarantor Company or Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that the Company or Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Securities or the Guarantees, as the Guarantor case may be, the Company or Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Global Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i1) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii2) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a national citizen or resident thereof or thereof, being treated as being or having been a resident thereofthereof or being or having been physically present therein;
(iii3) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign private foundation or other foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv4) actually or constructively owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the a Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or excise, personal property or similar Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed or withheld solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Company or a Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 2003, or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26 and 27, 2000, on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or;
(j) any withholding or deduction required pursuant to sections 1471 through 1474 of the Code, any regulations or agreements thereunder, official interpretations thereof, or any law implementing an intergovernmental approach thereto; or
(k) any combination of Section 3.02(aXxxxxxx 00.00(x), (bx), (cx), (dx), (ex), (fx), (gx), (hx), (x) and (ij). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered a Global Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered a Global Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 60 days prior to the first payment date with respect to which the Company or a Guarantor shall apply this paragraph, the Company or Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered a Global Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In additionThe Company or Guarantor, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of as the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor case may be, will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor Company or Guarantor, as applicable, will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor Company or Guarantor, as the case may be, will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company or Guarantor or if, notwithstanding the Company’s or applicable Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by the Company or Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Securities or Guarantees is due and payable, if the Company or a Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company or Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. In addition, the Company will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in Ireland or the United States or any political subdivision or taxing authority of or in the foregoing in respect of the creation, issue, offering, enforcement, redemption or retirement of the Securities. The provisions of this Article II XIV shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Company or a Guarantor or any successor Person to the Guarantor Company or Guarantor, as the case may be, is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Company or Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor Company or applicable Guarantor, as the case may be, shall be substituted for the date on which the Offered series of Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 2 contracts
Samples: Indenture (Tyco International Finance S.A.), Indenture (Tyco International Finance S.A.)
Payment of Additional Amounts. All payments made (a) Unless otherwise required by law, neither the Issuer nor the Guarantor under (including, for the purposes of this Section 4.07, any successor to the Issuer or the Guarantor) shall deduct or withhold from payments and deliveries made with respect to the Guarantees will be made free Notes and clear the Guarantee, including, but not limited to, payments of principal (including, if applicable, the Fundamental Change Repurchase Price or Redemption Price), payments of interest and without withholding payments of cash and/or deliveries of Common Shares or deduction for or other Reference Property, if any, upon exchange, on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature (including, without limitation, penalties and interest and other similar liabilities related thereto) (“Taxes”) imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless political subdivisions or taxing authorities in having the power to tax. The Issuer or the Guarantor is required to shall withhold or deduct any Taxes as required by law or by the interpretation or administration thereofapplicable law. In the event that any such payment or delivery by or on behalf of the Issuer or the Guarantor is required subject to so withhold withholding or deduct any amount for or deduction on account of any Bermuda Taxes due from any such payment or delivery made under or with respect to the GuaranteesNotes or the Guarantee, as the case may be, the Guarantor will Issuer or the Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as may be necessary Amounts so that the net amount received by each holder Holder of Securities (including Additional Amounts) after such withholding or deduction Notes will equal the amount that such Holder would have received if such the Bermuda Taxes had not been required to be withheld or deducted; provided . The amounts that no the Issuer or the Guarantor are required to pay to preserve the net amount receivable by the Holders of the Notes are referred to as “Additional Amounts will Amounts.”
(b) Additional Amounts, however, shall not be payable with respect to a payment or delivery made to a holder Holder of the Offered Securities or a holder of a beneficial interests in Notes to the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holderextent:
(i) is or was that any Bermuda Taxes would not have been so imposed but for the existence of any present or engaged informer connection between the Holder and Bermuda other than the mere receipt of the payment, the acquisition, ownership or is disposition of such Notes or was treated as present the exercise or engaged inenforcement of rights under the Notes, a trade the Guarantee or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdictionthis Indenture;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise transfer or personal property Taxes imposed with respect to the SecuritiesNotes, except as described below or as otherwise provided hereinin this Indenture;
(ciii) that any such Bermuda Taxes would not have been imposed solely as a result of but for the presentation of such Securities (the Notes, where presentation is required) , for payment on a date more than 30 days after the date on which such the payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder Holder thereof would have been entitled to the payment of Additional Amounts had the Securities Notes been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(jiv) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for that the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be liable or subject to such withholding or deduction of Bermuda Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or such Holder is legally entitled to provide a certificate declaring its non-residencemake, if the Company were treated as a domestic corporation under United States federal income tax and if if:
(xA) the making of such the declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority taxing authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and ; and
(yB) at least 90 60 days prior to the first payment date with respect to which the Issuer or the Guarantor shall apply this paragraphclause, the Issuer or the Guarantor shall have notified all Holders of Offered Securities the Notes in writing that they shall be required to provide such this declaration or claim. Additional Amounts also will not be payable to any Holder or .
(c) the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not Issuer and the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also also:
(i) make withhold or deduct such withholding or deduction of Bermuda Taxes and as required;
(ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction taxing authority in accordance with all applicable laws. The Guarantor will ;
(iii) use its commercially reasonable efforts to obtain from each relevant taxing authority imposing the Taxes certified copies of tax receipts evidencing the payment of any Taxes so taxes deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, withheld; and
(iv) upon request, make available to the holders Holders of the Offered SecuritiesNotes, within 90 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax Tax receipts evidencing such payment by the Issuer and the Guarantor or ifand, notwithstanding the Issuer or the Guarantor’s efforts to obtain such the receipts, if the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior payments.
(d) The Issuer or the Guarantor shall pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in Bermuda or the United States or any political subdivision or taxing authority of or in the foregoing (or in any jurisdiction in the case of enforcement) with respect to each date on which any payment under the creation, issue, offering, enforcement, or retirement of the Notes or the Guarantee or with respect to payments or deliveries on the Guarantees is due Notes or the Guarantee (other than, in the case of such taxes with respect to payments or deliveries, any taxes excluded from Additional Amounts as described above).
(e) If payments with respect to the Notes or the Guarantee become subject generally to the taxing jurisdiction of any Territory or any political subdivision or taxing authority having power to tax, other than or in addition to any political subdivision or taxing authority in Bermuda having the power to tax, immediately upon becoming aware thereof the Issuer shall notify the Trustee of such event, and payablethe Issuer or the Guarantor, if as the Guarantor will be obligated to case may be, shall pay Additional Amounts with in respect to such payment, the Guarantor will deliver thereof on terms corresponding to the Trustee an Officer’s Certificate stating terms of the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The foregoing provisions of this Article II shall survive any termination of Section 4.07 with the discharge of this Indenture and shall apply mutatis mutandis substitution for (or, as the case may be, in addition to) the references herein to any political subdivisions or taxing authority in Bermuda having the power to tax with references to that other or additional Territory or any political subdivision or taxing authority having the power to tax to whose taxing jurisdiction such payments shall have become subject as aforesaid. The term “Territory” means for this purpose any jurisdiction (other than the United States or any political subdivision or taxing authority therein) in which the Guarantor Issuer or any successor Person to the Guarantor, as the case may be, is incorporated or in which the Issuer or the Guarantor is organized has its place of central management or is engaged in central control or otherwise resident or doing business for tax purposes or any jurisdiction (other than the United States or any political subdivisions subdivision or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in ) of any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofPaying Agent.
Appears in 2 contracts
Samples: Indenture (Nabors Industries LTD), Indenture (Nabors Industries LTD)
Payment of Additional Amounts. All payments made by Parent or the Guarantor Company under or with respect to the Securities and the Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless Parent or the Guarantor Company, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor Parent or the Company is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Securities or the Guarantees, as the Guarantor case may be, Parent or the Company, as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such the holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because the beneficial owner of such holder Securities or a fiduciary, settler, beneficiary, or member of such holder the beneficial owner if such holder the beneficial owner is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company Parent or the GuarantorCompany;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder Holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder the beneficial owner or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of the holder or beneficial owner of such holderSecurities, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder the beneficial owner to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor Parent or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amendedDirective;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a14.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any a Holder or the holder of a beneficial interest in an Offered Security Securities that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder a beneficial owner of Securities that is not the sole Holder or holder beneficial owner of such beneficial interests of such Offered SecuritySecurities, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In additionParent or the Company, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of as the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor case may be, will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor Parent or the Company, as applicable, will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor Parent or the Company, as the case may be, will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by Parent or the Guarantor Company or if, notwithstanding GuarantorParent’s or the Company’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by GuarantorParent or the Company. At least 30 days prior to each date on which any payment under or with respect to the Securities or Guarantees is due and payable, if Parent or the Guarantor Company will be obligated to pay Additional Amounts with respect to such payment, Parent or the Guarantor Company will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. In addition, the Company will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in Luxembourg or the United States or any political subdivision or taxing authority of or in the foregoing in respect of the creation, issue, offering, enforcement, redemption or retirement of the Securities. The provisions of this Article II XIV shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which Parent or the Guarantor Company or any successor Person to Parent or the Guarantor Company, as the case may be, is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which Parent or the Guarantor Company changes its jurisdiction in which it is organized or such Person becomes a successor to Parent or the Guarantor Company, as the case may be, shall be substituted for the date on which the Offered series of Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 2 contracts
Samples: Indenture (Tyco Electronics Ltd.), Indenture (Covidien Ltd.)
Payment of Additional Amounts. All payments to be made by the Guarantor Company under or with respect to the Guarantees will this Agreement shall be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments duties or governmental charges of whatever nature whatsoever (“Taxes”) imposed or levied by or on behalf of the government of the Republic of Xxxxxxxx Islands or any Taxing Jurisdiction political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which the Company (including any successor entity) is organized or is otherwise resident for tax purposes, or any jurisdiction from or through which payment is made (each a “TaxesSpecified Tax Jurisdiction”), ) unless the Guarantor Company is required to withhold or deduct Taxes compelled by law to deduct or by the interpretation withhold such taxes, duties or administration thereofcharges. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Guaranteesevent, the Guarantor will Company shall pay such additional amounts (“Additional Amounts”) as may be necessary so in order that the net amount amounts received by each holder of Securities (including Additional Amounts) after such withholding or deduction will shall equal the amount amounts that such Holder would have been received if such Taxes no withholding or deduction had not been required made provided, however , that the foregoing obligation to be withheld or deducted; provided that no pay Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofdoes not apply to:
(a1) any Taxes that are would not have been so imposed but for the recipient having any present or withheld former connection with the Specified Tax Jurisdiction imposing the Tax, including such recipient (i) being organized under the laws of, or otherwise being or having been a domiciliary, citizen, resident or national thereof, (ii) being or having been engaged in a trade or business therein, (iii) having or having had its principal office located therein, (iv) maintaining a permanent establishment therein, (v) being or having been physically present therein, or (vi) otherwise having or having had some connection with the Specified Tax Jurisdiction (other than, in each case, any present or former connection arising solely because as a result of the transactions contemplated by this Agreement);
(2) any Taxes imposed as a result of the failure of the recipient to complete, execute and deliver to the Company (but only if such holder recipient can do so without undue hardship) any form or document to the extent applicable to such recipient that may be required by law or by reason of administration of such law and which is reasonably requested in writing to be delivered to the Company in order to enable the Company to make payments without deduction or withholding for Taxes, or with deduction or withholding of a lesser amount, which form or document will be delivered within 30 days of a written request therefor by the Company; or
(3) any Taxes imposed on or with respect to any payment by the Company to the recipient if such recipient is (i) a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, a partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (a person other than the mere fact of ownership sole beneficial owner of such Securities) with the Taxing Jurisdiction imposing such Taxespayment, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the such fiduciary, a partner or a beneficial owner or member of the partnership, limited liability company such partnership or other fiscally transparent entity, entity or the beneficial owner of such payment would not have been entitled to the payment of an Additional Amount Amounts had the such beneficiary, settlor, partner, member or beneficial owner or member received directly its beneficial or distributive share of been the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence direct recipient of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 2 contracts
Samples: Underwriting Agreement (Star Bulk Carriers Corp.), Underwriting Agreement (Star Bulk Carriers Corp.)
Payment of Additional Amounts. All payments made by the Guarantor under or with respect to the Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless the Guarantor a) The Company is required by Mexican law to deduct and to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any certain Taxes from payments of interest and amounts deemed interest to investors who are not residents of Mexico for tax purposes, and shall pay to any payment made under or with respect to the Guarantees, the Guarantor will pay Holder such additional amounts (“Additional Amounts”) as may be necessary so that on those payments to the net amount received extent described in this Section 3.21. To the extent Taxes imposed by each holder of Securities Mexico or any political subdivision or taxing authority thereof or therein (including Additional Amounts“Mexican Taxes”) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been are required to be withheld or deducted; provided that no deducted from any payments under the Notes or the Note Guarantees, the Company or the relevant Restricted Subsidiaries (the “Payor,” as applicable) shall pay such Additional Amounts will as may be payable with respect necessary to a payment ensure that the net amount actually received by such Holder after any such withholding or deduction of Mexican Taxes is equal to a holder of the Offered Securities amount that the Holder would have received had no such withholding or a holder of a beneficial interests in the Offered Securities where such holder is subject deduction been required.
(b) The Payor shall not pay Additional Amounts to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or Holder for or on account of:
(a) of any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holderthe following:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in any Taxes imposed solely because of the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had existence of any present or former connection between such Holder and Mexico (other than the mere fact receipt of a payment or the ownership or holding of such Securities) with a Note or enforcement of rights in respect of the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereofNotes);
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(bii) any estate, inheritance, gift, sales, transfertransfer or similar tax, excise assessment or personal property Taxes other governmental charge imposed with respect to the Securities, except as otherwise provided hereinNotes;
(ciii) any Taxes imposed solely because the Holder or any other Person fails to comply with any certification, identification, information, documentation or other similar reporting requirement if (A) such compliance is required by law, regulation, or administrative practice, or an applicable treaty in effect as a result precondition to exemption from, or reduction in the rate of, deduction or withholding of any Taxes for which the presentation Payor is required to pay Additional Amounts, (B) the Holder or such other Person is legally entitled to comply with such reporting requirement and (C) at least 30 days prior to the first Interest Payment Date or Change of Control Payment Date with respect to which the Payor shall apply this Section 3.21(b)(iii), the Company or the Restricted Subsidiaries shall have notified the Holder that the Holder shall be required to comply with such Securities requirement;
(where presentation is requirediv) any Taxes that are payable otherwise than by deduction or withholding from payments on the Notes;
(v) any Taxes with respect to such Note presented for payment on a date more than 30 days after the date on which such the payment became due and payable or the date on which payment thereof is duly provided forfor and notice thereof given to Holders, whichever is occurs later, except to the extent that the beneficiary or holder thereof Holders of such Note would have been entitled to the payment of such Additional Amounts had the Securities been presented on presenting such Note for payment on any date during such 30-day period;; and
(dvi) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order Note to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company fiduciary or partnership or a person other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of any such beneficial interests of such Offered Securitypayment, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the such fiduciary, a member of such a partnership or a the beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, payment would not have been entitled to the payment of an Additional Amount Amounts had the beneficiary, settlor, member or beneficial owner or member received directly its beneficial or distributive share of been the payment. In additionHolder.
(c) Upon request, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit Payor shall provide the full amount of Taxes so deducted or withheld Trustee with documentation reasonably satisfactory to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts Trustee evidencing the payment of any Taxes deducted or withheld (including certified copies of any of returns submitted). The Payor shall make copies of such documentation available to the Holders or the Paying Agent upon request.
(d) Notwithstanding the foregoing, the exceptions to a Payor’s obligation to pay Additional Amounts set forth in Section 3.21(b)(iii) shall not apply if (i) the provision of information, certification, documentation or other evidence described in Section 3.21(b)(iii) would be substantially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note (taking into account any relevant differences between U.S. law, rules, regulations or administrative practice and those of the relevant taxing jurisdiction (Mexico, or any political subdivision or taxing authority thereof or therein)) than comparable information or other reporting requirements imposed under U.S. tax law, regulation and administrative practice (such as IRS Forms W-8BEN and W-9) or (ii) with respect to Taxes imposed by Mexico or any political sub-division or taxing authority thereof, (A) Article 195, Section II, of the Mexican income tax law (or a substantially similar successor of such provision) is in effect, unless the provision of the information, certification, documentation or other similar evidence described in Section 3.21(b)(iii) is expressly required by statute, rule or regulation, or an order of a competent authority based upon any such law or regulation, in order to apply Article 195, Section II, of the Mexican income tax law (or a substantially similar successor of such provision), (B) the Payor cannot obtain such information, certification, documentation or other similar evidence on its own through reasonable diligence and (C) the Payor otherwise would meet the requirements for application of Article 195, Section II, of the Mexican income tax law (or such successor of such provision). In addition, Section 3.21(b)(iii) shall not be construed to require that a non-Mexican pension or retirement fund or a non-Mexican financial institution or any other Holder register with the Ministry of Finance and Public Credit for the purpose of establishing eligibility for an exemption from or reduction of Mexican withholding tax or to require that a Holder or beneficial owner of a Note certify or provide information concerning whether it is or is not a tax-exempt pension or retirement fund.
(e) In the event that Additional Amounts actually paid with respect to the Notes pursuant to the preceding paragraphs are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and, as a result thereof, such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to the Payor. However, by making such assignment, the Holder makes no representation or warranty that the Payor shall be entitled to receive such claim for a refund or credit and Incurs no other obligation with respect thereto (including Incurring any expenses whatsoever necessary to obtain such refund or taking any other action).
(f) In the event a Payor conducts business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than Mexico or any political subdivision thereof and, as a result, is required by the law of such Additional Taxing Jurisdiction to deduct or withhold any amount on account of taxes imposed by such Additional Taxing Jurisdiction from payments under the Notes or the relevant Note Guarantee, as the case may be, which would not have been required to be so deducted or withheld but for such conduct of business in such Additional Taxing Jurisdiction, then all references to Mexico, Mexican law or regulations, and Mexican taxing authorities under this Section 3.21 and Section 5.8 shall be deemed to also include such Additional Taxing Jurisdiction and any political subdivision thereof, the laws or regulations of such Additional Taxing Jurisdiction and any taxing authority of such Additional Taxing Jurisdiction, respectively.
(g) The Company (or, failing which, the relevant Restricted Subsidiaries) shall pay any present or future stamp, court or documentary taxes, or any other excise or property taxes, charges or similar levies which arise in any jurisdiction from each Taxing Authority imposing such Taxes. The Guarantor willthe execution, upon request, make available to the holders delivery or registration of the Offered SecuritiesNotes, within 90 days after the date Note Guarantees or any other document or instrument referred to therein (other than a transfer of the payment Notes), or the receipt of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Note Guarantees, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than Mexico or any political subdivision thereof, other than those resulting from, or required to be paid in connection with, the enforcement of the Notes, the Note Guarantees is due and payable, if or any other such document or instrument following the Guarantor will be obligated to pay Additional Amounts occurrence of any Event of Default with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. Notes.
(h) The provisions of foregoing paragraphs in this Article II Section 3.21 shall survive any termination termination, defeasance or discharge of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor a Payor is organized or is engaged in business for tax purposes or any political subdivisions subdivision or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 2 contracts
Samples: Indenture (Mexican Cellular Holding, Inc.), Indenture (Mexican Cellular Investments Inc)
Payment of Additional Amounts. All payments made by of Principal and interest in respect of the Guarantor under or with respect to the Guarantees will Securities shall be made free and clear of and without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, impostsimpost, assessments assessment or other governmental charges charge of whatever any nature whatsoever imposed or levied by or on behalf of the government of the United Kingdom or of any Taxing Jurisdiction territory of the United Kingdom or by any authority or agency therein or thereof having the power to tax (collectively, “Taxes”), unless except to the Guarantor is extent such Taxes are required to withhold be withheld or deduct Taxes deducted by law or by the interpretation or administration thereof. In If either the event that Company or the Guarantor is so required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with in respect to of the GuaranteesSecurities, the Guarantor will Company or the Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as may be necessary so such that the net amount received by each holder of Securities Holder (including such Additional Amounts) after such withholding or deduction will equal shall not be less than the amount that such Holder would have received if such the Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofTaxes:
(a) that would not have been imposed but for the existence of any Taxes that are imposed present or withheld solely because former connection between such holder Holder or beneficial owner of the Securities (or between a fiduciary, settlersettlor, beneficiary, member or member shareholder of, or possessor of a power over, such holder Holder or beneficial owner, if such holder Holder or beneficial owner is an estate, trust, partnershippartnership or corporation) and the United Kingdom or any political subdivision or territory or possession thereof or therein or area subject to its jurisdiction, limited liability company including, without limitation, such Holder or other fiscally transparent entitybeneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or a person holding a power over an estate or trust administered by a fiduciary holder:
(ipossessor) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as a resident thereof or domiciled thereof or a national thereof or being or having been present or engaged in trade or business therein or having or having had a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantorpermanent establishment therein;
(b) any that are estate, inheritance, gift, sales, transfer, excise personal property, wealth or personal property Taxes imposed with respect to the Securitiessimilar taxes, except as otherwise provided hereinduties, assessments or other governmental charges;
(c) that are payable other than by withholding from payments of Principal of or interest on the Securities;
(d) that would not have been imposed but for the failure of the applicable recipient of such payment to comply with any Taxes imposed solely certification, identification, information, documentation or other reporting requirement to the extent such compliance is required by applicable law or administrative practice or an applicable treaty as a result precondition to exemption from, or reduction in, the rate of deduction or withholding of such Taxes;
(e) that would not have been imposed but for the presentation of such Securities a Security (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is was duly provided for, whichever is occurred later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes imposed on a payment to an individual and are required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC or any other Directive implementing the conclusions of June 3the ECOFIN Council meeting of November 26-27, 2003 2000 on the taxation of savings income in the form of interest payments, or any amendment thereofincome, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amendedsuch Directive;
(ig) any withholding or deduction for Taxes which that would not have been imposed if presentation for payment of the relevant Securities had been presented made to another paying agent in a Member State of Paying Agent other than the European Union; orPaying Agent to which the presentation was made;
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to imposed but for a failure by the payment of an Additional Amount had the beneficiary, settlor, Holder or beneficial owner (or member received directly its any financial institution through which the Holder or beneficial owner holds any Security through which payment on the Security is made) to comply with any certification, information, identification, documentation or distributive share of other reporting requirements (including entering into and complying with an agreement with the payment. In addition, no Additional Amounts will be paid on account of U.S. Internal Revenue Service or any Taxes other governmental authority) imposed or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code as in effect on the date of issuance of the Notes or any successor or amended version of such provisions, any agreement entered into pursuant to Section 1471(b) of the U.S. Internal Revenue Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the U.S. Internal Revenue Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also law implementing such an intergovernmental agreement); or
(i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders combination of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or foregoing clauses (a) through (h); nor shall Additional Amounts be paid with respect to any payment of the Guarantees Principal of or interest on any Security to any such Holder who is due and payablea fiduciary or a partnership or a beneficial owner who is other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such Additional Amounts had it been the Holder of the Security. The Company shall maintain, if in respect of Securities of each series outstanding, at least one Paying Agent located outside the Guarantor United Kingdom. In the event that a Paying Agent with respect to Securities of a particular series is maintained in any member state of the European Union, the Company shall maintain a Paying Agent in at least one member state that will not be obligated obliged to withhold or deduct taxes pursuant to any law implementing European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings income, provided there is at least one member state that does not require a paying agent to withhold or deduct pursuant to such Directive. The obligation of the Company or the Guarantor, as the case may be, to pay Additional Amounts with respect to such payment, if and when due will survive the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis the payment of all amounts in respect of the Securities.”
SECTION 2.03 Amendments to Section 4.08 Relating to Reports by the Company and the Guarantor. Paragraph (a) of Section 4.08 of the Indenture is amended, with respect to Securities outstanding under series created on or after the date hereof, to read as follows:
(a) file with the Trustee, within 15 days after the Company or the Guarantor, as the case may be, is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any jurisdiction in of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company or the Guarantor may be required to file with the Commission pursuant to Section 13 or any successor Person to Section 15(d) of the Exchange Act; or, if the Company or the Guarantor is organized not required to file information, documents or is engaged reports pursuant to either of such Sections, then it will file with the Trustee, in business for tax purposes accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations; provided that reports, information and documents filed by the Company or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to with the Guarantor shall be substituted for Commission via the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall XXXXX System will be deemed to include mention filed with the Trustee for purposes of this Section 4.08 as of the payment of Additional Amounts to time that such reports, information and documents are filed via the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofXXXXX System;”.
Appears in 2 contracts
Samples: Supplemental Indenture (Glaxosmithkline Capital PLC), Supplemental Indenture (Glaxosmithkline Capital Inc)
Payment of Additional Amounts. All i. The Partnership shall make all payments made by on the Guarantor under or with respect to the Guarantees will be made Series 1 Preferred Units free and clear of and without withholding or deduction for at source for, or on account of of, any present or future taxes, fees, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction or (“Taxes”ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including a holding by a court of competent jurisdiction or by a taxing authority in any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(B)(e) and Section 2(B)(f), unless the Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect pay to the Guarantees, the Guarantor will pay Series 1 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that the every net amount received by each holder of Securities (including Additional Amounts) payment made to such holders, after such withholding or deduction will (including any such withholding or deduction from such Additional Amounts), shall be equal to the amount that such Holder amounts the Partnership would otherwise have received if such Taxes had not been required to pay had no such withholding or deduction been required.
ii. The Partnership shall not be withheld or deducted; provided that no required to pay any Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes tax, fee, duty, assessment or governmental charge of whatever nature that are would not have been imposed or withheld solely because but for the fact that such holder was a resident, domiciliary or a fiduciary, settler, beneficiarynational of, or member of such holder if such holder is an estate, trust, partnership, limited liability company engaged in business or other fiscally transparent entity, or maintained a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is permanent establishment or was physically present or engaged in, or is or was treated as present or engaged in, a trade or business in the Relevant Taxing Jurisdiction or has any political subdivision thereof or otherwise had a permanent establishment in some connection with the Relevant Taxing Jurisdiction;
(ii) has or had any present or former connection (Jurisdiction other than by reason of the mere fact ownership of, or receipt of ownership of such Securities) with payment under, the Taxing Jurisdiction imposing such Taxes, including being Series 1 Preferred Units or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities Series 1 Preferred Units presented for payment (where presentation is requiredrequired for payment) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, Relevant Date (except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts such amounts if it had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.such
Appears in 2 contracts
Samples: Limited Partnership Agreement (Brookfield Property Partners L.P.), Limited Partnership Agreement
Payment of Additional Amounts. (a) All payments made by or on behalf of the Issuer under or with respect to a Note, or a Guarantor under or with respect to the Guarantees will a Note Guarantee, shall be made free and clear of and without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, impostsimpost, assessments assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (hereinafter, “Taxes”) unless the Issuer or such Guarantor is required to withhold or deduct any such Taxes by law, including by the official interpretation or administration thereof by a relevant taxing authority. If any Taxes imposed or levied by or on behalf of the government of France or any other jurisdiction in which the Issuer or any Guarantor (or any successor Person) is organized or is a resident or does business for tax purposes or within or through which payment is made or any political subdivision or taxing authority or agency thereof or therein (any of the aforementioned being a “Taxing Jurisdiction (“TaxesJurisdiction”), unless the Guarantor is will at any time be required to withhold be withheld or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes deducted from any payment made under or with respect to a Note or a Note Guarantee, or if a Holder actually pays any such Taxes where the GuaranteesIssuer or Guarantor or applicable withholding agent has failed to withhold or deduct Taxes required to be withheld or deducted from any payment made under or with respect to a Note or a Note Guarantee, the Guarantor will Issuer or the relevant Guarantor, as applicable, shall, pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each the holder of Securities such Note (including Additional Amounts) after such withholding or deduction will equal by the applicable withholding agent of such Taxes (including any such Taxes on such Additional Amounts) shall not be less than the amount that such Holder holder would have received if such Taxes had not been required to be withheld or deducted; provided provided, however, that no notwithstanding the foregoing, Additional Amounts will not be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofpaid:
(a1) any to the extent the Taxes that are imposed giving rise to such Additional Amounts would not have been imposed, deducted or withheld solely because such holder or a fiduciary, settler, beneficiary, or member but for the existence of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection between the Holder or beneficial owner of a Note (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, the Holder or beneficial owner of such Note, if the Holder or beneficial owner is an estate, nominee, trust, partnership or corporation) and the relevant Taxing Jurisdiction (other than the mere fact of ownership receipt of such Securities) with payment or the Taxing Jurisdiction imposing acquisition, ownership, holding or disposition of, or the execution, delivery, registration or enforcement of, such Taxes, including being Note or having been a citizen or resident thereof or being treated as being or having been a resident thereofNote Guarantee);
(iii2) subject to subsection (e) of this Section 4.20, with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfertransfer or similar tax;
(3) subject to subsection (e) of this Section 4.20, excise or personal property Taxes imposed with respect to the Securities, except as any Taxes payable otherwise provided hereinthan by deduction or withholding from payments under or with respect to such Note;
(c4) to the extent such Taxes would not have been imposed, deducted or withheld if the Holder or beneficial owner of the Note or beneficial owner of any payment on such Note had (i) made a declaration of non-residence, or any other claim or filing for exemption, to which it is entitled or (ii) complied with (to the extent legally eligible to do so) any Taxes imposed solely certification, identification, information, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder or beneficial owner of such Note or any payment on such Note (provided that (x) such declaration of nonresidence or other claim or filing for exemption or such compliance is required by the applicable law of the Taxing Jurisdiction as a result precondition to exemption from, or reduction in the rate of the presentation imposition, deduction or withholding of, such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of nonresidence or other claim or filing for exemption or such Securities compliance is required under the applicable law of the Taxing Jurisdiction, the relevant Holder at that time has been notified in writing by the Issuer, any Guarantor or any other Person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption or such compliance is required to be made);
(5) to the extent such Taxes would not have been imposed, deducted or withheld if the Note had been presented for payment (where presentation is required) for payment on a date more than within 30 days after the date on which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later, later (except to the extent that the beneficiary or holder thereof Holder would have been entitled to the payment of Additional Amounts had the Securities Note been presented for payment on any date during the last day of such 30-day period);
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e6) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted under or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable a Note to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company fiduciary or partnership or any person other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of such beneficial interests of such Offered Securitypayment or Note, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the such fiduciary, a member of such a partnership or a the beneficial owner of such payment or member of the partnership, limited liability company or other fiscally transparent entity, Note would not have been entitled to the payment of an Additional Amount Amounts had the such beneficiary, settlor, member or beneficial owner or member received directly its beneficial or distributive share been the actual Holder of such Note;
(7) to the payment. In addition, no Additional Amounts will be paid on account of any extent such Taxes are imposed or withheld pursuant to Sections Section 1471 through 1474 of the Code Internal Revenue Code, as of the Issue Date (or any amended or successor version of such sections that is are substantively comparable) comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States implementing the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code as of the Issue Date (or any amended or successor version described above); and
(8) any combination of items (1) through (7) above. The Guarantor foregoing provisions shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor Person to the Issuer or a Guarantor.
(b) The Issuer or the applicable Guarantor, if it is the applicable withholding agent, will also (i) make such any applicable withholding or deduction of Taxes required by law and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction authority in accordance with all applicable lawslaw. The Issuer or the applicable Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available furnish to the holders of the Offered SecuritiesTrustee, within 90 30 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing or, if such tax receipts are not reasonably available to the Issuer or such Guarantor, such other documentation that provides reasonable evidence of such payment by the Guarantor Issuer or if, notwithstanding such Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence . Copies of such payments by Guarantor. receipts or other documentation will be made available to the Holders or the Paying Agent, as applicable, upon request.
(c) At least 30 days prior to each date on which any payment under or with respect to the Guarantees any Notes is due and payable, if the Issuer or any Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer or such Guarantor will deliver to the Trustee and the Paying Agent an Officer’s Officers’ Certificate stating the fact that such Additional Amounts will be payable, payable and the amounts so payable and will set forth such other information as is necessary to enable such Trustee and Paying Agents to pay such Additional Amounts to holders Holders of Offered Securities such Notes on the payment date. The provisions of this Article II shall survive any termination of Notwithstanding the discharge of this Indenture and shall apply mutatis mutandis foregoing, if the obligation to pay Additional Amounts arises after the 30th day prior to any jurisdiction in which such date, the Issuer or the applicable Guarantor or any successor Person will deliver to the Guarantor is organized or is engaged Trustee and the Paying Agent an Officers’ Certificate as described in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which preceding sentence and will pay such Additional Amounts promptly after such obligation arises. The Trustee and the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor Paying Agent shall be substituted for the date entitled but shall not be obligated to rely on which the Offered Securities was issued. each Officers’ Certificate until receipt of a further Officers’ Certificate addressing such matters.
(d) Whenever in this Indenture, the Securities Indenture or the Guarantees Notes there is mentioned, in any context, the payment of principal and principal, premium, if any, redemption price, interest or of any other amount payable under or with respect to any SecurityNote, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) In addition to the foregoing, the Issuer and the Guarantors will pay any present or future stamp, court or documentary Taxes or any other excise, property or similar Taxes that arise in any Taxing Jurisdiction from the execution, issue, delivery, enforcement or registration of the Notes, the Indenture, any Guarantee or any other document or instrument in relation thereto, and the Issuer and the Guarantors will indemnify the Holders of the Notes for any such Taxes paid by such Holders.
Appears in 2 contracts
Samples: Indenture (Crown Holdings, Inc.), Indenture (Crown Holdings Inc)
Payment of Additional Amounts. (a) All payments and deliveries made by the Guarantor Company or any successor to the Company under or with respect to this Indenture and the Guarantees will Notes, including, but not limited to, payments of principal, payments of interest and deliveries of ADSs (together with cash payments in lieu of any fractional ADSs) upon conversion, shall be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of within any jurisdiction in which the Company or any successor to the Company is, for tax purposes, organized or resident or doing business in or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction (“TaxesJurisdiction”), unless the Guarantor such withholding or deduction is required to withhold or deduct Taxes by law or by regulation or governmental policy having the interpretation or administration thereofforce of law. In the event that Guarantor any such withholding or deduction is required to so withhold required, the Company or deduct any amount for or on account of any Taxes from any payment made under or with respect successor to the Guarantees, the Guarantor will Company shall pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary so to ensure that the net amount received by each holder of Securities (including Additional Amounts) the beneficial owner after such withholding or deduction will (and after deducting any taxes on the Additional Amounts) shall equal the amount amounts that such Holder would have been received if by such Taxes beneficial owner had not no such withholding or deduction been required to be withheld or deductedrequired; provided that that no Additional Amounts will shall be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or payable:
(i) for or on account of:
(aA) any Taxes that are imposed or withheld solely because such holder or a fiduciarytax, settlerduty, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company assessment or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holdergovernmental charge that would not have been imposed but for:
(i1) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had existence of any present or former connection (between the Holder or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the mere fact receipt of ownership of payments thereunder, including, without limitation, such Securities) with the Taxing Jurisdiction imposing such Taxes, including Holder or beneficial owner being or having been a citizen national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being treated as being or having been physically present or engaged in a resident thereoftrade or business therein or having or having had a permanent establishment therein;
(iii2) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities Note (where in cases in which presentation is required) for payment on a date more than 30 days after the later of the date on which the payment of the principal of (including the Repurchase Price or Fundamental Change Repurchase Price, if applicable), premium, if any, and interest on, such payment Note became due and payable pursuant to the terms thereof or the date on which payment thereof is was made or duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;; or
(d3) any Taxes imposed solely as a result of the failure of such holder the Holder or any other person beneficial owner to comply with applicable a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documentation documents or other reporting requirements evidence concerning the such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such holdermatters, if and to the extent that due and timely compliance with such compliance request is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling regulation or administrative practice of the relevant Relevant Taxing Authority Jurisdiction to reduce or eliminate any withholding or deduction as a precondition to an exemption fromwhich Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(B) any estate, inheritance, gift, sale, transfer, excise, personal property or reduction insimilar tax, assessment or other governmental charge;
(C) any taxes imposed pursuant to Sections 1471 to 1474 of the relevant TaxesUnited States Internal Revenue Code of 1986, as amended, including any current or former United States Treasury Regulations or other official interpretations or guidance thereunder, any agreements or intergovernmental agreements thereunder, and any law implementing any intergovernmental agreement relating thereto;
(yD) at least 90 days prior to the first payment date any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to which the Guarantor shall apply this paragraphNotes; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration preceding clauses (A), (B), (C) or claim. Additional Amounts also will not be payable (D); or
(ii) with respect to any payment of the principal of (including the Repurchase Price or Fundamental Change Repurchase Price, if applicable), premium, if any, and interest on, such Note to a Holder, if the Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company partnership or person other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, who would not have been entitled to the payment of an such Additional Amount Amounts had the that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) Any reference in this Indenture or member received directly its beneficial or distributive share the Notes in any context to the delivery of ADSs (together with a cash payment in lieu of any fractional ADSs) upon conversion of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed Notes or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted principal of (including the Repurchase Price or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payableFundamental Change Repurchase Price, if the Guarantor will be obligated to pay Additional Amounts applicable), and any premium or interest on, any Note or any amount payable with respect to such paymentNote, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of any Additional Amounts, unless the payment of Additional Amounts to the extent thatcontext requires otherwise, in such context, Additional Amounts are, were or would that may be payable with respect to that amount under the obligations referred to in respect thereofthis Section 4.07.
(c) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 2 contracts
Samples: Indenture (Qihoo 360 Technology Co LTD), Indenture (Qihoo 360 Technology Co LTD)
Payment of Additional Amounts. All payments made by the Guarantor under or (a) The Company shall pay any amounts due with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees will be made free without deduction or withholding for any and clear of all present and without future withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental imposts and charges of whatever nature (a “withholding tax”) imposed or levied by or on behalf for the account of the Cayman Islands, Switzerland or any other jurisdiction in which either the Company or a Guarantor is a resident for tax purposes or any political subdivision or taxing authority of such jurisdiction (the “Taxing Jurisdiction (“TaxesJurisdiction”), unless the Guarantor such withholding or deduction is required by law. If such deduction or withholding is at any time required, the Company or such Guarantor, as applicable, will, to withhold or deduct Taxes the fullest extent allowed by law or (subject to compliance by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct holder of a Security with any amount for or on account of any Taxes from any payment made under or with respect to the Guaranteesrelevant administrative requirements), the Guarantor will pay such additional amounts (the “Additional Amounts”) in respect of principal amount, redemption price and interest (if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so that the net amount received by each amounts paid to the holder of Securities (including Additional Amounts) or the Trustee after such deduction or withholding or deduction will equal the amount that such Holder would have received principal amount, redemption price and interest (if such Taxes had not been required to be withheld or deducted; provided that no any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts will in the following instances:
(1) if any withholding would not be payable with respect to a payment to a holder of or due but for the Offered Securities or a fact that (i) the holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
Security (a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settlersettlor, beneficiarybeneficiary of, member or member of such holder shareholder of, the holder, if such the holder is an estate, trust, partnershippartnership or corporation), limited liability company is a domiciliary, national or other fiscally transparent entityresident of, or engaging in business or maintaining a person holding a power over an estate permanent establishment or trust administered by a fiduciary holder:
(i) is or was being physically present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any otherwise having some present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing other than the holding or ownership of the Security or the collection of principal amount, redemption price, repurchase price and interest (if any), in accordance with the terms of the Securities and this Indenture, or the enforcement of the Security or (ii) where presentation is required, the Security was presented more than 30 days after the date such Taxespayment became due or was provided for, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereofwhichever is later;
(iii2) with respect to if any withholding Taxes imposed by the United States, tax is or was with respect attributable to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or excise, personal property Taxes imposed with respect to the Securitiesor similar tax, except as otherwise provided hereinlevy, impost or charge;
(c3) if any Taxes imposed solely as a result of the presentation of such Securities (where presentation withholding tax is required) for payment on a date more attributable to any tax, levy, impost or charge which is payable otherwise than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the by withholding from payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day periodprincipal amount, redemption price, repurchase price and interest (if any);
(d4) if any Taxes withholding tax would not have been imposed solely as a result of but for the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection connections with the Taxing Jurisdiction relevant tax authority of such holderthe holder or beneficial owner of the Security, if such this compliance is required by statute or by regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxeswithholding tax;
(e5) with respect to withholding Taxes imposed by the United States, any extent a holder of a Security is entitled to a refund or credit in such Taxes imposed by reason Taxing Jurisdiction of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes amounts required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agentTaxing Jurisdiction;
(h6) if any Taxes withholding or deduction is required to be deducted or withheld made pursuant to any agreements between the European Community and other countries or territories providing for measures equivalent to those laid down in the Council Directive 2003/48/EC EC, including, but not limited to, the agreement between the European Union and Switzerland of June 3October 26, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof2004, or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amendedsuch agreements;
(i7) if any withholding is required to be made pursuant to laws enacted by Switzerland providing for the taxation of payments according to principles similar to those laid down in the draft legislation of the Swiss Federal Council of December 17, 2014, or otherwise changing the Swiss federal withholding tax system from an issuer-based system to a paying-agent-based system pursuant to which a person other than the issuer is required to withhold tax on any interest payments;
(8) if any withholding tax or deduction for Taxes which would not have been imposed if is required to be made pursuant to an agreement between Switzerland and another country or countries on final withholding taxes levied by Swiss paying agents in respect of persons resident in the relevant other country on income of such person on any Securities had been presented to another booked or deposited with a Swiss paying agent (Abgeltungssteuer), and such holder of a Security chooses not to provide the certification, documentation or other information that would eliminate such withholding or deduction;
(9) if any withholding tax or deduction is required to be made in a Member State respect of any tax, duty, assessment or other governmental charge imposed or withheld pursuant to Sections 1471 through 1474 of the European UnionCode, as of the date hereof (or any amended or successor version), current or future U.S. Treasury Regulations issued thereunder or any official interpretation thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code; or
(j10) any combination of Section 3.02(a), the instances described in the preceding clauses.
(b)) With respect to clause (a)(5) above, (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable in the absence of evidence satisfactory to or for the account of any Holder Company or the applicable Guarantor, it may conclusively presume that a holder of a beneficial interest in an Offered Security if such payment would not is entitled to a refund or credit of all amounts required to be subject to such withholding or deduction of Taxes but for the failure of a Holder withheld. The Company or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the applicable Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable pay any Additional Amounts to any Holder or the holder of a beneficial interest in an Offered Security that who is a fiduciary, partnership, limited liability company fiduciary or partnership or other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only Security to the extent that a beneficiary or settlor with respect to the such fiduciary, or a member of such partnership or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entitythereof, would not have been entitled to the payment of an such Additional Amount Amounts had the such beneficiary, settlor, member or beneficial owner or member received directly its beneficial or distributive share been the holder of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 2 contracts
Samples: Indenture (Transocean Ltd.), Indenture (Transocean Ltd.)
Payment of Additional Amounts. All (i) The Partnership shall make all payments made by on the Guarantor under or with respect to the Guarantees will be made Series 1 Preferred Units free and clear of and without withholding or deduction for at source for, or on account of of, any present or future taxes, fees, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Relevant Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction or (“Taxes”ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including a holding by a court of competent jurisdiction or by a taxing authority in any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required by a Relevant Taxing Jurisdiction, the Partnership shall, subject to the limitations and exceptions set forth in this Section 2(B)(f) and Section 2(B)(g), unless the Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect pay to the Guarantees, the Guarantor will pay Series 1 Holders such additional amounts (the “Additional Amounts”) as distributions as may be necessary so that the every net amount received by each holder of Securities (including Additional Amounts) payment made to such holders, after such withholding or deduction will (including any such withholding or deduction from such Additional Amounts), shall be equal to the amount that such Holder amounts the Partnership would otherwise have received if such Taxes had not been required to pay had no such withholding or deduction been required.
(ii) The Partnership shall not be withheld or deducted; provided that no required to pay any Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes tax, fee, duty, assessment or governmental charge of whatever nature that are would not have been imposed or withheld solely because but for the fact that such holder was a resident, domiciliary or a fiduciary, settler, beneficiarynational of, or member of such holder if such holder is an estate, trust, partnership, limited liability company engaged in business or other fiscally transparent entity, or maintained a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is permanent establishment or was physically present or engaged in, or is or was treated as present or engaged in, a trade or business in the Relevant Taxing Jurisdiction or has any political subdivision thereof or otherwise had a permanent establishment in some connection with the Relevant Taxing Jurisdiction;
(ii) has or had any present or former connection (Jurisdiction other than by reason of the mere fact ownership of, or receipt of ownership of such Securities) with payment under, the Taxing Jurisdiction imposing such Taxes, including being Series 1 Preferred Units or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities Series 1 Preferred Units presented for payment (where presentation is requiredrequired for payment) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, Relevant Date (except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts such amounts if it had the Securities been presented such units for payment on any date during day within such 30-30 day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification). The “Relevant Date” means, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which such payment first becomes due and payable, but if the Guarantor changes its jurisdiction in which full amount of the moneys payable has not been received by the Paying Agent on or prior to such due date, it is organized or such Person becomes a successor to means the Guarantor shall be substituted for the first date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the full amount of such moneys having been so received and being available for payment of principal to holders and premium, if any, redemption price, interest or any other amount payable under or with respect notice to any Security, such mention that effect shall be deemed to include mention of the payment of Additional Amounts have been duly given to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.Series 1 Holders;
Appears in 2 contracts
Samples: Limited Partnership Agreement (Brookfield Property Partners L.P.), Limited Partnership Agreement (BPY Bermuda Holdings IV LTD)
Payment of Additional Amounts. (a) All payments made by the Guarantor under or with respect to the Guarantees Notes or with respect to any Note Guarantee will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxes, duties, levies, imposts, assessments or other governmental charges of whatever nature nature, including any penalties and interest relating thereto (“Taxes”) imposed or levied by or on behalf of the government of, or any political subdivision of any authority or agency therein or thereof having power to tax of, (i) any jurisdiction in which the Company (including any surviving entity) is then incorporated, organized or resident for tax purposes, (ii) any jurisdiction in which any Guarantor is then incorporated, organized or resident for tax purposes or (iii) any jurisdiction from or through which payment is made by or on behalf of the Company or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) (each of (i), (ii) and (iii), a “Relevant Tax Jurisdiction”), unless the withholding or deduction of such Taxes is then required by law or by regulation or by government policy having the force of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of any Taxing Relevant Tax Jurisdiction (“Taxes”), unless the Guarantor is will at any time be required to withhold or deduct Taxes by law or by regulation or by government policy having the interpretation or administration thereof. In the event that Guarantor is required force of law to so withhold or deduct any amount for or on account of any Taxes be made from any payment payments made under or with respect to the GuaranteesNotes or with respect to any Note Guarantee, including, without limitation, payments of principal, redemption price, repurchase price, interest or premium, the Company, the relevant Guarantor or other payor, as applicable, will pay such additional amounts (the “Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by each holder of Securities Holder (including Additional Amounts) after such withholding or deduction will equal the amount respective amounts that such Holder would have been received if in respect of such Taxes had not been required to be withheld payments in the absence of such withholding or deducteddeduction; provided provided, however, that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofto:
(a1) any Taxes that would not have been imposed but for the Holder of a Note or the beneficial owner of a Note being a citizen or resident or national of, incorporated in or carrying on a business or maintaining a permanent establishment or physical presence in, the applicable Relevant Tax Jurisdiction in which such Taxes are imposed or having any other present or former connection with the applicable Relevant Tax Jurisdiction other than the mere acquisition, holding, enforcement or receipt of payment in respect of such Note or any Note Guarantee;
(2) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder the Holder of a Note or any other person beneficial owner of a Note to comply with applicable certificationany timely reasonable written request, informationmade to that Holder or beneficial owner, documentation by the Company or other reporting requirements any of the Guarantors to provide timely and accurate information concerning the nationality, residence, residence or identity or connection with the Taxing Jurisdiction of such holderHolder or beneficial owner or to make any valid and timely declaration or similar claim or satisfy any certification, if such compliance information or other reporting requirement, which is required or imposed by statute a statute, treaty, regulation or regulation administrative practice of the relevant Taxing applicable Relevant Tax Jurisdiction as a precondition to relief or any exemption from or reduction in all or part of such TaxesTaxes to which such Holder or beneficial owner is entitled;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f3) any Taxes that Note presented for payment (where Notes are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order definitive registered Notes and presentation is required) more than 30 days after the relevant payment is first made available for payment to conform to, the Holder (except to the extent that Directive or the Luxembourg Law Holder would have been entitled to Additional Amounts had the Note been presented on the last day of December 23, 2005, as amendedsuch 30-day period);
(i4) any withholding payment under or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable a Note made to any Holder or the holder of a beneficial interest in an Offered Security that who is a fiduciary, partnership, limited liability company fiduciary or partnership or any person other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of such beneficial interests of such Offered Securitypayment, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the such fiduciary, a member of such a partnership or a the beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, such payment would not have been entitled to the payment of an Additional Amount Amounts had the such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note;
(5) any estate, inheritance, gift, sales, excise, transfer, personal property or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of similar Taxes;
(6) any Taxes imposed payable other than by deduction or withheld withholding from payments under, or with respect to, the Notes or with respect to any Note Guarantee;
(7) any withholding or deduction required pursuant to Sections 1471 through 1474 of the Code as of the Issue Date (or any amended or successor version that is substantively comparablesubstantially comparable and not materially more onerous to comply with) and or any current regulations or future regulations promulgated thereunder or agreements thereunder, official interpretations thereof, or any law, regulation or government policy having the force of law implementing an intergovernmental approach thereto; and
(8) any combination of items (1) through (7) above.
(b) In addition, a Guarantor that is a Swiss tax resident entity shall not be required to pay any Additional Amounts with respect to any Swiss Taxes withheld by such Guarantor under the Swiss Federal Act on Withholding Tax as of October 13, 1965; provided that this restriction shall not in any way limit the obligations of any non-Swiss persons otherwise obligated to pay Additional Amounts to pay the Additional Amounts in respect of the deduction of Swiss withholding Taxes; provided, further, that in the event that a Swiss tax resident Guarantor that would otherwise be required to pay Additional Amounts with respect to Swiss Taxes is relieved from such obligation pursuant to this sentence, the other Guarantors, jointly and severally, irrevocably and unconditionally Guarantee, on a senior unsecured basis, the payment of such Additional Amounts in respect of such Swiss Taxes.
(c) In addition to the foregoing, the Company and the Guarantors will also pay and indemnify the Trustee and any Holder for any present or future stamp, issue, registration, excise, court or documentary taxes, or any other similar Taxes which are levied by any Relevant Tax Jurisdiction on the execution, delivery, registration or enforcement of any of the Notes, this Indenture, any Note Guarantee, or any other document or instrument referred to herein or therein.
(d) If the Company or any Guarantor, as the case may be, is or becomes obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or any Note Guarantee, the Company or the relevant Guarantor, as the case may be, will deliver to the Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Company or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officers’ Certificate shall also set forth any other information reasonably necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date. The Trustee shall be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary and for the amount of such payments, and in the absence of such Officers’ Certificate, the Trustee may assume that no Additional Amounts are due. The Company or the relevant Guarantor will also (i) provide the Trustee with documentation evidencing the payment of Additional Amounts and the Trustee will make such documentation available to the Holders and beneficial owners of the Notes.
(e) The applicable withholding or deduction of Taxes agent will make all required withholdings and (ii) deductions and will remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction taxing authority in accordance with all applicable lawslaw. The Upon request, the Company or the relevant Guarantor will use its commercially reasonable efforts provide to obtain certified copies of tax the Trustee an official receipt or, if official receipts are not obtainable, other documentation evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxeswithheld. The Company or the relevant Guarantor will, upon (as the case may be) will attach to each receipt or other documentation a certificate stating the amount of such Taxes paid per $1,000 principal amount of the Notes then outstanding. Upon request, make copies of those receipts or other documentation, as the case may be, will be made available by the Trustee to the holders Holders and beneficial owners of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Notes.
(f) Whenever in this Indenture, the Securities Notes or the Note Guarantees there is mentioned, in any context, the payment of amounts based upon the principal and premium, if any, redemption priceamount of the Notes or of principal, interest or of any other amount payable under under, or with respect to to, any Securityof the Notes or Note Guarantee (as the case may be), such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(g) The obligations under this Section 4.17 will survive termination, defeasance or discharge of this Indenture and any transfer by a Holder or beneficial owner of its Notes and will apply mutatis mutandis to any jurisdiction in which any successor person to the Company or any Guarantor is incorporated, organized or resident for tax purposes or any jurisdiction from or through which such person makes any payment on the Notes (or any Note Guarantee) and any political subdivision thereof or therein.
Appears in 2 contracts
Samples: Senior Secured Notes Indenture (CIMPRESS PLC), Note and Warrant Purchase Agreement (CIMPRESS PLC)
Payment of Additional Amounts. All payments made by the Guarantor under If any deduction or with respect to the Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or other governmental charges of whatever nature imposed any jurisdiction (or levied by any political subdivision or on behalf of any Taxing Jurisdiction (“Taxes”), unless taxing authority thereof or therein) in which the Guarantor is resident for tax purposes shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to withhold or deduct Taxes by law or be paid by the interpretation or administration thereof. In Guarantor under the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the GuaranteesGuarantee, the Guarantor will pay to each Holder of Outstanding Securities as additional interest, such additional amounts (“Additional Amounts”) as may be necessary so in order that the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that amounts paid to such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable who, with respect to a payment to a holder of the Offered Securities any such tax, assessment or other governmental charge, is not resident in, or a holder citizen of, such jurisdiction, after such deduction or withholding, shall be not less than the amount to which such Holder is entitled; provided, however, the Guarantor shall not be -------- ------- required to make any payment of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or additional amounts for or on account of:
(i) Any tax, assessment or other governmental charge which would not have been imposed but for (a) the existence of any Taxes that are imposed present or withheld solely because former connection between such holder Holder (or between a fiduciary, settlersettlor, beneficiary, member or member shareholder of such holder Holder, if such holder Holder is an estate, trust, partnership, limited liability company or other fiscally transparent entitycorporation) and the taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction, including, without limitation, such Holder (or a person holding a power over an estate such fiduciary, settlor, beneficiary, member or trust administered by a fiduciary holder:
(ishareholder) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been present or engaged in trade or business therein or having had a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is permanent establishment therein or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities an Outstanding Security (where presentation is required) for payment on a date more than 30 days after (x) the date on which such payment became due and payable or (y) the date on which payment thereof is duly provided for, whichever is occurs later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(dii) any Taxes imposed solely as a result of the failure of such holder Any estate, inheritance, gift, sale, transfer, personal property or any other person to comply with applicable certificationsimilar tax, information, documentation assessment or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxesgovernmental charge;
(eiii) with Any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of (or in respect to withholding Taxes of) principal of, premium, if any, or any interest on, Outstanding Securities;
(iv) Any tax, assessment or other governmental charge that is imposed by the United States, any such Taxes imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of the Outstanding Security with a request of the Guarantor addressed to the Holder (a) to provide information, documents or other evidence concerning the nationality, residence or identity of the Holder or such holder beneficial owner or (b) to fulfill make and deliver any declaration or other similar claim (other than a claim for refund of a tax, assessment or other governmental charge withheld by the statement requirements of sections 871(hGuarantor) or 881(c) of the Code;
(f) satisfy any Taxes that are payable by any method other than withholding information or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3reporting requirements, 2003 on the taxation of savings income which, in the form case of interest payments, (a) or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by a statute, treaty, regulation, ruling regulation or administrative practice of the relevant Taxing Authority taxing jurisdiction as a precondition to an exemption fromfrom all or part of such tax, assessment or reduction inother governmental charge, provided -------- that, in the case of (b), the relevant TaxesHolder is legally entitled to deliver such declaration or similar claim; or
(v) Any combination of items (i), (ii), (iii) and (yiv) at least 90 days prior to the first payment date above; nor shall additional amounts be paid with respect to which any payment of the Guarantor shall apply this paragraphprincipal of, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable any premium or interest on, any Outstanding Security to any Holder or the holder of a beneficial interest in an Offered Security that who is a fiduciary, partnership, fiduciary or partnership or limited liability company or other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only payment to the extent that such payment would be required by the laws of any jurisdiction in which the Guarantor is resident for tax purposes (or any political subdivision or taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or settlor with respect to the fiduciary, such fiduciary or a beneficial owner or member of the such partnership, limited liability company or other fiscally transparent entity, beneficial owner who would not have been entitled to such additional amounts had it been the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence Holder of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Outstanding Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 2 contracts
Samples: Indenture (Hilfiger Tommy Corp), Indenture (Hilfiger Tommy Usa Inc)
Payment of Additional Amounts. All payments made by Payments under the Guarantor under or with respect to the Guarantees Securities will be made free and clear of and without deduction or withholding or deduction for or on account of any present or future taxestax, dutiesduty, levies, imposts, assessments assessment or governmental charges charge imposed upon or as a result of whatever nature imposed such payments by Switzerland or levied by any jurisdiction in which a branch of the Company through which any Security is issued is located (or on behalf of any Taxing Jurisdiction political subdivision or taxing authority thereof or therein) (“a "Relevant Jurisdiction") ("Taxes”"), unless required by law. To the Guarantor extent any such Taxes are so levied or imposed, the Company will, subject to the exceptions and limitations set forth below, pay such additional amounts ("Additional Amounts") to the Holder of any Security who is required to withhold not a resident of the Relevant Jurisdiction or deduct Taxes by law any political subdivision or by taxing authority thereof or therein as may be necessary in order that every net payment of the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct principal of and interest on such Security and any amount other amounts payable on such Security, after withholding for or on account of any such Taxes from imposed upon or as a result of such payment, will not be less than the amount provided for in such Security to be then due and payable. However, the Company will not be required to make any payment of Additional Amounts to any such Holder if such payment can be made under without such deduction or with respect withholding by a paying agent other than the one required to the Guaranteesmake such a deduction or withholding. Further, the Guarantor Company will pay such additional amounts (“not be required to make any payment of Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that Amounts to any such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(i) any such Taxes which would not have been so imposed but for (a) the existence of any Taxes that are imposed present or withheld solely because former connection between such holder Holder (or between a fiduciary, settler, beneficiary, member or member shareholder of such holder Holder, if such holder Holder is an estate, a trust, partnership, limited liability company or other fiscally transparent entity, a partnership or a person holding a power over an estate corporation) and Switzerland (or trust administered by a fiduciary holder:
any political subdivision or taxing authority thereof or therein) including, without limitation, such Holder (ior such fiduciary, settler, beneficiary, member or shareholder) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been engaged in a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United Statestrade or business or present therein or having, is or was with respect to the United States a personal holding companyhaving had, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization permanent establishment therein or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise the presentation by or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result on behalf of the presentation 50 58 Holder of any such Securities (where presentation is required) for Security payment on a date more than 30 15 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is occurs later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(dii) any estate, inheritance, gift, sales, transfer or personal property tax or any similar tax, duty, assessment or governmental charge;
(iii) any Taxes which are payable otherwise than by withholding from payments on or in respect of any Security;
(iv) any Taxes which would not have been imposed solely as a result of but for the failure of such holder or any other person to comply with applicable certification, information, documentation information or other reporting requirements concerning the nationality, residence, residence or identity of the holder or connection with the Taxing Jurisdiction beneficial owner of such holderSecurity, if such compliance is required by statute or by regulation of the relevant Taxing Jurisdiction or on behalf of Switzerland or any political subdivision or taxing authority thereof or therein as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United Statestax, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) assessment or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Uniongovernmental charge; or
(jv) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and items (i). ) through (iv) above; nor shall Additional Amounts will not be payable paid with respect to any payment on a Security to a Holder who is a fiduciary or for partnership or other than the account sole beneficial owner of any Holder or such payment to the holder of a beneficial interest in an Offered Security if extent such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or included in the holder income, for tax purposes, of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of such partnership or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, who would not have been entitled to the payment of an Additional Amount Amounts had the such beneficiary, settlor, member or beneficial owner or member received directly its beneficial or distributive share been the Holder of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment dateSecurity. The provisions of this Article II Section 1007 shall survive also apply to any termination of the discharge of this Indenture and shall apply mutatis mutandis to Taxes imposed by any jurisdiction in which the Guarantor or any successor a Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on into which the Guarantor changes its jurisdiction in which it is organized Company has merged or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Company has conveyed, transferred or leased its property is located. For purposes of this Section 1007, any references to principal of and/or interest on Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of a reference to any relevant premium and/or Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofof such Securities.
Appears in 2 contracts
Samples: Indenture (Ubs Ag), Indenture (Ubs Ag)
Payment of Additional Amounts. All payments made by the Issuer or any Guarantor under or with respect to the Guarantees Notes will be made free and clear of of, and without withholding or deduction for or on account of of, any present or future taxestax, dutiesduty, levieslevy, impostsimpost, assessments assessment or other governmental charges of whatever nature charge (“Taxes”) imposed or levied by or on behalf of the government of Canada or Bermuda or of any province or territory therein or thereof or by any authority or agency therein or thereof having power to tax (a “Relevant Taxing Jurisdiction (“TaxesJurisdiction”), unless the Issuer or any Guarantor (as applicable) is required to withhold or deduct Taxes taxes by law the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof. In If the event that Issuer or any Guarantor is so required to so withhold or deduct any amount for or on account of any Taxes taxes imposed or levied by a Relevant Taxing Jurisdiction from any payment made by it under or with respect to the GuaranteesNotes, the Issuer or such Guarantor (as applicable) will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) by each Holder (including, as applicable, the beneficial owners in respect of any such Holder) after such withholding or deduction will equal not be less than the amount that the Holder (including, as applicable, the beneficial owners in respect of any such Holder Holder) would have received if such Taxes taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
to: (a) any Taxes that are imposed payment to a Holder or withheld solely because beneficial owner who is liable for such holder taxes in respect of such Note (i) by reason of such Holder or beneficial owner, or any other person entitled to payments on the Note, being a person with whom the Issuer or any Guarantor does not deal at arm’s length (within the meaning of the Income Tax Act (Canada) (the “Tax Act”)), (ii) by reason of the existence of any present or former connection between such Holder or beneficial owner (or between a fiduciary, settlersettlor, beneficiary, member or member shareholder of, or possessor of power over, such holder Holder or beneficial owner, if such holder Holder or beneficial owner is an estate, trust, partnership, limited liability company or other fiscally transparent entity, corporation) and Canada or a person holding a power over an estate any province or trust administered by a fiduciary holder:
(i) is territory thereof or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (therein other than the mere fact of ownership ownership, or receiving payments under or enforcing any rights in respect of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being Note as a non-resident or having been a citizen deemed non-resident of Canada or resident any province or territory thereof or being treated as being or having been a resident thereof;
therein, (iii) by reason of such Holder or beneficial owner being a “specified shareholder” of the Issuer or not dealing at arm’s length with a “specified shareholder” of the Issuer as defined in subsection 18(5) of the Tax Act, or (iv) by reason of such holder or beneficial owner being a “specified entity” in respect of the Issuer or any Guarantor as defined in proposals to amend the Tax Act with respect to “hybrid mismatch arrangements” contained in Bill C-59 tabled in Parliament on November 30, 2023; (b) any tax that is levied or collected other than by withholding Taxes imposed by from payments on or in respect of the United States, Notes; (c) any Note presented for payment (where presentation is required) more than 30 days after the later of (i) the date on which such payment first becomes due or was with respect (ii) if the full amount of the monies payable has not been paid to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more Holders of the total combined voting power Notes on or prior to such date, the date on which the full amount of all classes of stock such monies has been paid to the Holders of the Company Notes, except to the extent that the Holder or beneficial owner of the Guarantor;
Notes would have been entitled to such Additional Amounts on presentation of the same for payment on the last day of such period of 30 days; (bd) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
tax or any similar tax; (ce) any Taxes tax imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of resulting from the failure of such holder a Holder or any other person beneficial owner to comply with applicable certification, informationidentification, documentation declaration or other similar reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction Canada or any province or territory thereof or therein of such holderHolder or beneficial owner, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction by regulation, as a precondition to relief reduction of, or exemption exemption, from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
tax; (f) any Taxes that are payable by any method other than (i) withholding or deduction by imposed pursuant to Sections 1471 to 1474 of the Guarantor or the Company U.S. Internal Revenue Code of 1986, as amended (“FATCA”), or any paying agent successor version thereof, or any similar legislation imposed by any other governmental authority, or (ii) tax or penalty arising from payments in the Holder’s or beneficial owner’s failure to properly comply with the Holder’s or beneficial owner’s obligations imposed under the Canada-United States Enhanced Tax Information Exchange Agreement Implementation Act (Canada) or any treaty, law or regulation or other official guidance enacted by Canada implementing FATCA or an intergovernmental agreement with respect to FATCA or any similar legislation imposed by any other governmental authority, including, for greater certainty, Part XVIII and Part XIX of such Securities;
the Tax Act; or (g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State combination of the European Union; or
foregoing clauses (ja) any combination of Section 3.02(a), (b), (c), (d), (e), to (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (The Issuer or any amended or successor version that is substantively comparableGuarantor (as applicable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i1) make such withholding or deduction of Taxes and (ii2) remit the full amount of Taxes so deducted or withheld by it to the relevant Taxing Jurisdiction authority in accordance with all applicable lawslaw. The Issuer or any Guarantor (as applicable) will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available furnish to the holders Holders of the Offered SecuritiesNotes, within 90 30 days after the date the payment of any Taxes so deducted or withheld taxes by it is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by it. The Issuer and the Guarantor or ifGuarantors will indemnify and hold harmless each Holder (including, notwithstanding Guarantor’s efforts to obtain such receiptsas applicable, the same are beneficial owners in respect of any such Holder) and, upon written request, will reimburse each such Holder (including, as applicable, the beneficial owners in respect of any such Holder) for the amount of (i) any taxes (other than any taxes for which Additional Amounts would not obtainablebe payable pursuant to clauses (a) through (g) above) levied or imposed and paid by such Holder (including, other evidence as applicable, the beneficial owners in respect of any such Holder) as a result of payments by Guarantor. At least 30 days prior to each date on which any payment made under or with respect to the Guarantees is due Notes which have not been withheld or deducted and payableremitted by the Issuer or any Guarantor (as applicable) in accordance with applicable law, if the Guarantor will be obligated to pay (ii) any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, and (iii) any taxes (other than any taxes for which Additional Amounts would not be payable pursuant to clauses (a) through (g) above) imposed with respect to any reimbursement under clause (i) or (ii) above, but excluding any such paymenttaxes on such Holder’s (including, as applicable, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that beneficial owners in respect of any such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issuedHolder’s) net income. Whenever in this Indenture, the Securities or the Guarantees Indenture there is mentioned, in any context, the payment of principal (and premium, if any), redemption amount, purchase price, interest or any other amount payable under or with respect to any SecurityNote, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The obligations of the Issuer and the Guarantors under this Section 2.14 shall survive the termination of this Indenture and the payment of all amounts under or with respect to the Notes.
Appears in 1 contract
Samples: Third Supplemental Indenture (Brookfield Renewable Partners L.P.)
Payment of Additional Amounts. All payments made by the Guarantor under or of principal and interest (including payments of a Change of Control purchase price and premium, if any) with respect to the Guarantees will Securities shall be made free and clear of of, and without withholding or deduction for or on account of of, any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or on behalf of any within a Taxing Jurisdiction or by or within any political subdivision thereof or any authority therein or thereof having power to tax (“"Gross-Up Taxes”"), unless the Guarantor such withholding or deduction is required to withhold or deduct Taxes by law or by the interpretation or administration thereoflaw. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under such withholding or with respect deduction, the Issuer, shall pay to the Guarantees, the Guarantor will pay Holder of such Securities such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder in respect of Securities (including Additional Amounts) after such withholding or deduction will equal as are necessary so that such Holder receives the amount that would have been due to such Holder would have received if in the absence of such Taxes had not been required to be withheld withholding or deducted; provided deduction ("Additional Amounts"), except that no such Additional Amounts will shall be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofpayable:
(a1) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiaryto, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or to a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged inPerson on behalf of, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership of Holder who is liable for such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Gross-Up Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;by reason of such Holder having some connection with the relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Taxing Jurisdiction) other than the mere holding of a Security or the receipt of principal and interest (including payments of discount and premium, if any) in respect thereof; or
(c2) any Taxes imposed solely as to, or to a result of the presentation of such Securities Person on behalf of, a Holder who presents a Security (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, Relevant Date except to the extent that the beneficiary or holder thereof such Holder would have been entitled to such Additional Amounts on presenting such Security for payment on the last day of such period of 30 days; or
(3) to, or to a Person on behalf of, a Holder who would not be liable or subject to the withholding or deduction by making a declaration of non-residence or similar claim for exemption to the relevant tax authority; or
(4) in respect of any estate, asset, inheritance, gift, transfer or sales tax that is imposed or withheld; or
(5) any combination of (a)-(d) above. Such Additional Amounts will also not be payable where, had the beneficial owner of the Security (or any interest therein) been the Holder of the Security, he would not have been entitled to payment of Additional Amounts had the Securities been presented for payment on by reason of any date during such 30-day period;
one or more of clauses (a) through (d) any Taxes imposed solely as a result of above. If the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes Issuer shall determine that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction inforegoing reasons, the relevant TaxesIssuer will inform such Holder promptly after making such determination setting forth the reason(s) therefor. Reference in this Indenture or any Securities to payment of principal, and (y) at Change of Control purchase price, interest, discount or premium in respect of the Securities shall be deemed also to refer to any Additional Amounts which may be payable as set forth in this Indenture or in the Securities. At least 90 days 10 Business Days prior to the first payment date with respect Interest Payment Date (and at least 10 Business Days prior to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to each succeeding Interest Payment Date if there has been any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor change with respect to the fiduciary, or a beneficial owner or member of matters set forth in the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receiptsbelow-mentioned Officers' Certificate), the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor Issuer will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver furnish to the Trustee and any Paying Agent an Officer’s Officers' Certificate stating instructing the fact that such Additional Amounts will be payable, the amounts so payable Trustee and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment Paying Agent whether payments of principal and of, or premium, if any, redemption priceor interest on, interest the Securities due on such Interest Payment Date shall be without deduction or withholding for or on account of any Gross-Up Taxes. If any such deduction or withholding shall be required, prior to such Interest Payment Date the Issuer will furnish the Trustee and any Paying Agent with an Officers' Certificate which specifies the amount, if any, required to be withheld on such payment to Holders and certifies that the Issuer shall pay such withholding or deduction. The Issuer covenants to indemnify the Trustee and any Paying Agent for, and to hold the Trustee and any Paying Agent harmless against, any loss, liability or expense reasonably incurred without negligence, willful misconduct or bad faith on its part, arising out of or in connection with actions taken or omitted by the Trustee or any other amount payable under or with respect Paying Agent in reliance on any Officers' Certificate furnished pursuant to this paragraph. Any Officers' Certificate required by this Section 4.9 to be provided to the Trustee and any Security, such mention Paying Agent shall be deemed to include mention be duly provided if telecopied to the Trustee and such Paying Agent. The Issuer shall furnish to the Trustee the official receipts (or a certified copy of the official receipts) evidencing payment of Additional Amounts Gross-Up Taxes. Copies of such receipts shall be made available to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofHolders of the Securities upon request.
Appears in 1 contract
Samples: Indenture (NRG Energy Inc)
Payment of Additional Amounts. (a) All payments made in respect of the Notes or any Guarantee thereof by or on behalf of the Guarantor under Company or with respect to the Guarantees will any Guarantor, shall be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, impostsassessments, assessments or other governmental charges charges, including any related interest, penalties or additions to tax (“Taxes”) unless such withholding or deduction is required by law. If any deduction or withholding in respect of whatever nature any Taxes imposed or levied by or on behalf of (a) any Taxing Jurisdiction jurisdiction in which the Company or any Guarantor is or was incorporated, organized, or engaged in business or resident for tax purposes, or (“Taxes”b) any jurisdiction from or through which payment is made by or on behalf of the Company or any Guarantor (or any of their respective agents, including the jurisdiction of any Paying Agent) (each of (a) and (b), unless the Guarantor is and any political subdivision thereof or therein, a “Relevant Taxing Jurisdiction”) will at any time be required to withhold or deduct Taxes be made by law or by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct any amount for or on account applicable withholding agent in respect of any Taxes from any payment made under or with respect to the Guaranteesany Notes, or any Guarantee thereof, the Guarantor will Company or the relevant Guarantor, as applicable, shall pay such additional amounts (“Additional Amounts”) as may shall be necessary so in order that the net amount amounts received by each holder the beneficial owners of Securities (including Additional Amounts) the Notes, after such withholding or deduction will by such applicable withholding agent shall equal the amount that respective amounts which would otherwise have been received in respect of the Notes or Guarantee thereof, as applicable, in the absence of such Holder would have received if such Taxes had not been required to be withheld withholding or deducted; provided that no deduction.
(b) No Additional Amounts will shall be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofpayable:
(a1) in respect of any Taxes that are imposed or withheld solely because such by reason of the holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present beneficial owner having some current or former connection with the Relevant Taxing Jurisdiction (other than the mere fact of ownership holding or disposition of such Securities) with Note, the Taxing Jurisdiction imposing receipt of principal, interest or any other amount in respect of such TaxesNote or Guarantee, including being or having been a citizen the enforcement of such Note or resident thereof or being treated as being or having been a resident thereofGuarantee);
(iii2) in respect of any Taxes imposed or withheld by reason of the failure of the relevant holder or beneficial owner to satisfy or comply with respect (or cause any affiliate or owner of such holder or beneficial owner to satisfy or comply with) any certification, declaration, identification, information or other requirements required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction as a precondition to any applicable exemption from, or reduction in the rate of deduction or withholding of, such Taxes imposed by the United StatesRelevant Taxing Jurisdiction (including, is or was with respect without limitation, a declaration of non-residence), but, in each case, only to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization extent such holder or corporation that has accumulated earnings beneficial owner is legally eligible to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantordo so;
(b3) in respect of any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with otherwise than by withholding from payments under or in respect to of the Securities, except as otherwise provided hereinNotes or Guarantee;
(c4) in respect of any Taxes that would not have been imposed solely as a result but for the presentation by the holder of the presentation of such Securities (Note, where presentation is required) , for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is occurs later, except to the extent that the beneficiary such holder or holder thereof beneficial owner would have been entitled to the payment of Additional Amounts had the Securities such Note been presented for payment on any date during the last day of such 30-day period;
(d5) in respect of any Taxes imposed solely as a result pursuant to current Sections 1471 through 1474 of the failure of such holder Code (or any other person amended or successor provisions that are substantively comparable and not materially more onerous to comply with applicable certificationwith), informationany current or future regulations thereunder or any official interpretations thereof, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation any agreement entered into pursuant to current Section 1471(b) of the relevant Taxing Jurisdiction as a precondition to relief Code (or exemption from such Taxesany amended or successor provision described above) or any intergovernmental agreement (and any related laws, regulations or official administrative guidance) implementing the foregoing;
(e6) with in respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding estate, inheritance, gift, sales, transfer, wealth or deduction by personal property Tax or similar Tax, or excise tax imposed on the Guarantor or transfer of the Company or any paying agent from payments in respect of such SecuritiesNotes;
(g7) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder beneficial owner of the Notes, or holder a portion of such beneficial interests of such Offered Securitythe Notes, as the case may be. This exceptionor that is a fiduciary, howeverpartnership or other flow-through entity, will apply but only to the extent that a beneficial owner with respect to the holder, a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company partnership or other fiscally transparent entity, flow-through entity would not have been entitled to the payment of an Additional Amount Amounts had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment; and
(8) in respect of any combination of items (1), (2), (3), (4), (5), (6) and/or (7).
(c) The Company and the Guarantors shall pay any present or future stamp, issue, registration, court, documentary, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, issuance, initial delivery, or initial registration (and in any jurisdiction from the enforcement) of the Notes, any Guarantee thereof, this Indenture or any other document or instrument referred to herein.
(d) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable to the notes. In additionExcept as specifically provided in this Section 4.18, no Additional Amounts neither the Company, nor any Guarantor, will be paid on account of required to make any payment for any Taxes imposed required by any government or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any a political subdivisions subdivision or taxing authority of or agency thereof in any government or therein; provided, however, political subdivision to be withheld from any payment in respect of the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever Notes.
(e) Wherever in this Indenture, the Securities Indenture or the Guarantees Notes, there is mentioned, in any context, context (i) the payment of principal and premium, if any, principal; (ii) the redemption price, interest prices or purchase prices in connection with a redemption or purchase of Notes; (iii) interest; or (iv) any other amount payable under on or with respect to any Securitythe Notes, such mention reference shall be deemed to include mention of the payment of Additional Amounts as described under this Section 4.18 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The Obligations of the Company or any Guarantor under this Section 4.18 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor to the Company or such Guarantor, as applicable, and any jurisdiction in which any successor Person to the Company or such Guarantor is incorporated, organized, or engaged in business or resident for tax purposes, or any jurisdiction from or through which such Person (or its Paying Agent) makes any payment under or with respect to the Notes or any Guarantee thereof and, in each case, any political subdivision thereof or therein.
Appears in 1 contract
Samples: Indenture (Adient PLC)
Payment of Additional Amounts. 10.7.1 All payments made by in respect of the Guarantor under or with respect to the Guarantees will Securities shall be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or other governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or on behalf of Brazil or any Taxing Successor Jurisdiction or any authority therein or thereof having power to tax (“Foreign Taxes”), unless except to the Guarantor is extent that such Foreign Taxes are required by Brazil, such Successor Jurisdiction or any such authority to withhold be withheld or deduct Taxes by law or by the interpretation or administration thereofdeducted. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from withholding or deduction for any Foreign Taxes, the Company shall make such deduction or withholding, make payment made under or with respect of the amount so withheld to the Guarantees, the Guarantor will appropriate governmental authority and pay such additional amounts (“Additional Amounts”) as may be are necessary so to ensure that the net amount amounts received by each holder the Holders of Securities (including Additional Amounts) after such withholding or deduction will equal equals the amount that such Holder respective amounts of principal, premium and interest which would have received if been receivable in respect of such Securities had no such withholding or deduction (including for any Foreign Taxes had not payable in respect of Additional Amounts) been required to be withheld or deducted; provided required, except that no such Additional Amounts will shall be payable with respect to any payment on a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holderSecurity:
(i) is or was present or engaged into, or is or was treated as present or engaged into a third party on behalf of, a trade Holder who is liable for any such taxes, duties, assessments or business other governmental charges in respect of such Security by reason of (A) a connection between the Holder and Brazil or such Successor Jurisdiction other than the mere holding of such Security and the receipt of payments with respect to such Security or (B) failure by the Holder to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with Brazil or a Successor Jurisdiction, or applicable political subdivision or authority thereof or therein having power to tax, of such Holder, if compliance is required by Brazil or such Successor Jurisdiction, or any political subdivision or authority thereof or therein having power to tax as a precondition to exemption from, or reduction in the Taxing Jurisdiction rate of, the tax, assessment or other governmental charge and the Company has given the Holders at least 30 days’ notice that Holders will be required to provide such certification, identification or had a permanent establishment in the Taxing Jurisdictionother requirement;
(ii) has in respect of any such taxes, duties, assessments or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) governmental charges with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
Security surrendered (iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation if surrender is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided forfor and notice thereof given to Holders, whichever is occurs later, except to the extent that the beneficiary or holder thereof Holder of such Security would have been entitled to the payment of such Additional Amounts had the Securities been presented on surrender of such Security for payment on any date during the last day of such 30-day period;
(diii) any Taxes in respect of estate, inheritance, gift, sales, transfer, personal property or similar tax, assessment or governmental charge imposed solely as with respect to a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such TaxesSecurity;
(eiv) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any tax, assessment or other governmental charge payable otherwise than by deduction or withholding from payments on any series of Securities if such or by direct payment can be by the Company in respect of claims made without such withholding by at least one other paying agentagainst the Company;
(hv) any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be deducted or withheld made pursuant to the any European Council Union Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in implementing the form conclusions of interest paymentsthe ECOFIN Council meeting of November 26-27, or any amendment thereof, 2000 or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Unionsuch directive; or
(jvi) in respect of any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and the above. For purposes of the provisions described in clause (i)) above, the term “Holder” of any Security means the direct nominee of any beneficial owner of such Security, which holds such beneficial owner’s interest in such Security. Notwithstanding the foregoing, the limitations on the Company’s obligation to pay Additional Amounts will set forth in clause (i) above shall not apply if the provision of information, documentation or other evidence described in such clause (i) would be payable materially more onerous, in form, in procedure or in the substance of information disclosed, to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder beneficial owner of a beneficial interest in an Offered Security to make a valid declaration of non-residence (taking into account any relevant differences between U.S. law, regulation or other similar claim for exemption or to provide a certificate declaring its non-residenceadministrative practice and the law, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling regulation or administrative practice of Brazil or the relevant Taxing Authority Successor Jurisdiction) than comparable information or other reporting requirements imposed under U.S. tax law (including tax treaties between the United States and Brazil), regulation (including proposed regulations) and administrative practice. The Company shall promptly provide the Trustee with documentation, if any, (which may consist of certified copies of such documentation) reasonably satisfactory to the Trustee evidencing the payment of Foreign Taxes in respect of which the Company has paid any Additional Amounts. Copies of such documentation shall be made available to the Holders of the Securities or the Paying Agent, as a precondition to an exemption fromapplicable, or reduction inupon request therefor. In respect of the Securities issued hereunder, the relevant Taxes, and (y) at least 90 10 days prior to the first date of payment date with respect of interest on the Securities and at least 10 days prior to which the Guarantor shall apply this paragrapheach date, the Guarantor shall have notified all Holders if any, of Offered Securities in writing that they shall be required to provide such declaration payment of principal or claim. Additional Amounts also will not be payable to interest thereafter if there has been any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor change with respect to the fiduciarymatters set forth in the below-mentioned Officers’ Certificate, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled Company shall furnish the Trustee and each Paying Agent with an Officers’ Certificate instructing the Trustee and such Paying Agent as to the whether such payment of an Additional Amount had the beneficiary, settlor, beneficial owner principal of or member received directly its beneficial any interest on such Securities shall be made without deduction or distributive share of the payment. In addition, no Additional Amounts will be paid withholding for or on account of any Taxes imposed tax, duty, assessment or withheld pursuant to Sections 1471 through 1474 of the Code (other governmental charge. If any such deduction or withholding shall be required by Brazil or any amended Successor Jurisdiction or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make authority therein having power to tax, then such withholding or deduction of Taxes and (ii) remit certificate shall specify, by country, the full amount of Taxes so amount, if any, required to be deducted or withheld on such payment to Holders of such Securities, and the Company shall pay or cause to be paid to the relevant Taxing Jurisdiction in accordance with all applicable lawsTrustee or such Paying Agent Additional Amounts, if any, required by this Section. The Guarantor will use its commercially reasonable efforts Company agrees to obtain certified copies indemnify the Trustee and each Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of tax receipts evidencing or in connection with actions taken or omitted by them in reliance on any Officers’ Certificate furnished pursuant to this Section, the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders obligation of the Offered SecuritiesCompany to so indemnify being joint and several.
10.7.2 The Company shall pay all stamp, within 90 days after issue, registration, documentary or other similar duties, if any, which may be imposed by Brazil or any other governmental entity or political subdivision therein or thereof, or any taxing authority of or in any of the date the payment of any Taxes so deducted or withheld is due pursuant to applicable lawforegoing, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees Indenture or the issuance of the Securities.
10.7.3 The Company shall provide each Paying Agent and any withholding agent under relevant tax regulations with copies of each certificate received by the Company from a Holder of a Security pursuant to the text of such Security. Each such Paying Agent and withholding agent shall retain each such certificate received by it for as long as any Security is due outstanding and payablein no event for less than four years after its receipt, if and for such additional period thereafter, as set forth in an Officers’ Certificate, as such certificate may become material in the Guarantor will be obligated to pay administration of applicable tax laws.
10.7.4 In the event that Additional Amounts actually paid with respect to the Securities pursuant to the preceding paragraph are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such paymentSecurities, and, as a result thereof, such Holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Securities, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess to the Company. However, by making such assignment, the Guarantor will deliver to Holder makes no representation or warranty that the Trustee an Officer’s Certificate stating the fact that such Additional Amounts Company will be payable, the amounts so payable entitled to receive such claim for a refund or credit and will set forth such incurs no other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of obligation with respect thereto.
10.7.5 All references in this Indenture and shall apply mutatis mutandis the Securities to principal, premium or interest in respect of any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor Security shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal deemed to mean and premiuminclude all Additional Amounts, if any, redemption pricepayable in respect of such principal, interest premium or any other amount payable under or with respect to any Securityinterest, such mention shall be deemed to include unless the context otherwise requires, and express mention of the payment of Additional Amounts in any provision hereof shall not be construed as excluding reference to the extent that, in such context, Additional Amounts are, were in those provisions hereof where such express mention is not made. All references in this Indenture and the Securities to principal in respect of any Security shall be deemed to mean and include any Redemption Price or would be Repurchase Price payable in respect thereofof such Security pursuant to any redemption or repurchase right hereunder (and all such references to the Stated Maturity of the principal in respect of any Security shall be deemed to mean and include the Redemption Date or Repurchase Date with respect to any such Redemption Price or Repurchase Price), and all such references to principal, premium, interest or Additional Amounts shall be deemed to mean and include any amount payable in respect hereof pursuant to this Section 10.7, and express mention of the payment of any Redemption Price or Repurchase Price, or any such other amount in any provision hereof shall not be construed as excluding reference to the payment of any Redemption Price or Repurchase Price, or any such other amounts in those provisions hereof where such express reference is not made.
Appears in 1 contract
Samples: Indenture (Vale Overseas LTD)
Payment of Additional Amounts. (a) All payments made by of, or in respect of, principal of, and any premium and interest on, the Guarantor under or with respect to the Guarantees will Notes shall be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxes, duties, levies, imposts, assessments or other governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction taxing authority within Australia or any other jurisdiction (other than the United States of America, any state, possession or territory thereof, the District of Columbia or any political subdivision or taxing authority of any of the foregoing) in which Newcrest Finance is or becomes resident for tax purposes (whether by merger, consolidation or otherwise) (each a “TaxesRelevant Jurisdiction”)) or any political subdivision or taxing authority of any of the foregoing, unless the Guarantor is such taxes, duties, assessments or other governmental charges are required to withhold or deduct Taxes by law or by the interpretation Relevant Jurisdiction or administration thereofany political subdivision or taxing authority thereof or therein to be withheld or deducted. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Guaranteesevent, the Guarantor Newcrest Finance will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder will result (after deduction of Securities (including such taxes, duties, assessments or governmental charges and any additional taxes, duties, assessments or other governmental charges payable in respect of such Additional Amounts) after in the payment to the Holder of each Note of the amounts which would have been payable in respect of such Note had no such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided required, except that no Additional Amounts will shall be so payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a1) any Taxes that are imposed or withheld solely because such holder or a fiduciarywithholding, settlerdeduction, beneficiarytax, or member of such holder if such holder is an estateduty, trust, partnership, limited liability company assessment or other fiscally transparent entity, governmental charge which would not have been imposed but for the fact that such Holder or a person holding a power over an estate or trust administered by a fiduciary holderbeneficial owner of the Note:
(ia) is was a resident, domiciliary or was present national of, or engaged in, in business or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had maintained a permanent establishment in or was physically present in, the Taxing Jurisdiction;
(ii) has Relevant Jurisdiction or otherwise had any present or former some connection (with the Relevant Jurisdiction other than the mere fact ownership of, or receipt of ownership of payment under, such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the GuarantorNote;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of presented such Securities Note (where presentation is required) for payment on a date in any Relevant Jurisdiction, unless such Note could not have been presented for payment elsewhere; or
(c) presented such Note (where presentation is required) more than 30 thirty (30) days after the date on which the payment in respect of such payment Note first became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof Holder would have been entitled to the payment of such Additional Amounts if it had the Securities been presented such Note for payment on any date during day within such period of thirty (30-day period) days;
(d2) any Taxes imposed solely as a result of the failure estate, inheritance, gift, sale, transfer, personal property or similar tax, duty, assessment or other governmental charge or any withholding or deduction on account of such holder or any other person to comply with applicable certificationtax, informationduty, documentation assessment or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxesgovernmental charge;
(e3) with any tax, duty, assessment or other governmental charge which is payable otherwise than by withholding or deduction from payments of (or in respect to withholding Taxes of) principal of, or any premium and interest on, the Note;
(4) any withholding, deduction, tax, duty, assessment or other governmental charge that is imposed by the United States, any such Taxes imposed or withheld by reason of the failure to comply by the Holder of such holder to fulfill Note or, in the statement requirements case of sections 871(h) or 881(c) a Global Note, the beneficial owner of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company such Global Note, with a request of Newcrest Finance or any paying agent from payments in respect of Paying Agent addressed to such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Securityowner, as the case may be. This exception, however(a) to provide information concerning the nationality, will apply only residence or identity of such Holder or such beneficial owner, or an appropriate tax file number, or other number or exemption details, or (b) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (a) or (b), is required or imposed by a statute, treaty, regulation or administrative practice of any Relevant Jurisdiction or any political subdivision or taxing authority thereof or therein as a precondition to exemption from all or part of such withholding, deduction, tax, duty, assessment or other governmental charge;
(5) any withholding, deduction, tax, duty, assessment or other governmental charge which is imposed or withheld by reason of such Holder being an associate of Newcrest Finance for the purposes of Section 128F(9) of the Income Tax Assessment Act 1936 (the “Australian Tax Act”) of Australia or by reason of the Australian Commissioner of Taxation giving a notice under section 255 of the Australian Tax Act of Australia or section 260-5 of Schedule One of the Taxation Administration Act 1953 of Australia;
(6) any withholding or deduction with respect to any tax, duty, assessment or other governmental charge imposed by the United States of America, any state, possession or territory thereof, the District of Columbia or any political subdivision or taxing authority of any of the foregoing;
(7) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Code (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(8) any combination of items (1), (2), (3), (4), (5), (6) and (7); nor shall Additional Amounts be paid with respect to any payment of, or in respect of, the principal of, or any premium or interest on, any such Note to any such Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that such payment on a Note would, under the laws of a Relevant Jurisdiction or any political subdivision or taxing authority thereof or therein, be treated as being derived or received for tax purposes by a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of such partnership or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, who would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, had it been the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination Holder of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Note.
(b) Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the any payment of or in respect of the principal and premiumof, if any, redemption price, interest or any other amount payable under premium or with respect to interest on, any SecurityNote, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to this Indenture, and any express mention of the payment of Additional Amounts in any provisions of this Indenture shall not be construed as excluding Additional Amounts in those provisions of this Indenture where such express mention is not made. Where Additional Amounts are payable in respect of any interest payments, such Additional Amounts will not be considered to be interest for the purposes of this Indenture.
(c) The obligation to pay Additional Amounts will apply to any successor Person to Newcrest Finance, subject to the same exceptions set forth above.
Appears in 1 contract
Samples: Indenture (NEWMONT Corp /DE/)
Payment of Additional Amounts. (a) All payments made by the Company under or with respect to the Notes or by a Guarantor under or with respect to the Guarantees will its Note Guarantee shall be made free and clear of and without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, impostsimpost, assessments assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (hereinafter, "Taxes") imposed or levied by or on behalf of the government of ----- France or any other jurisdiction in which the Company or any Guarantor is organized or is a resident for tax purposes or within or through which payment is made or any political subdivision or taxing authority or agency thereof or therein (any of the aforementioned being a "Taxing Jurisdiction (“Taxes”Jurisdiction"), unless the -------------------- Company or such Guarantor is required to withhold or deduct any such Taxes by law or by the interpretation or administration thereof. In .
(b) If the event that Company or any Guarantor is so required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the GuaranteesNotes or the Note Guarantee of such Guarantor, the Guarantor will Company or such Guarantor, as applicable, shall, pay such additional amounts (“"Additional ---------- Amounts”") as may be necessary so that the net amount received by each holder Holder of Securities ------- Notes (including Additional Amounts) after such withholding or deduction will equal of such Taxes shall not be less than the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided provided, however, that no notwithstanding the foregoing, Additional Amounts will not be payable paid with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofto:
(a1) any Taxes that are imposed would not have been so imposed, deducted or withheld solely because such holder or a fiduciary, settler, beneficiary, or member but for the existence of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection between the Holder or beneficial owner of a Note (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, the Holder or beneficial owner of such Note, if the Holder or beneficial owner is an estate, nominee, trust, partnership or corporation) and the relevant Taxing Jurisdiction (other than the mere fact of ownership receipt of such Securities) with payment or the Taxing Jurisdiction imposing ownership or holding of or the execution, delivery, registration or enforcement of such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereofNote);
(iii2) with respect subject to any withholding Taxes imposed by the United Statessubsection (f) of this Section 4.16, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transferexcise, excise transfer or personal property tax or similar tax, assessment or governmental charge;
(3) any Taxes imposed payable otherwise than by deduction or withholding from payments under or with respect to the Securities, except as otherwise provided hereinsuch Note;
(c4) any Taxes imposed solely that would not have been so imposed, deducted or withheld if the Holder or beneficial owner of the Note or beneficial owner of any payment on such Note had (i) made a declaration of non-residence, or any other claim or filing for exemption, to which it is entitled or (ii) complied with any certification, identification, information, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder or beneficial owner of such Note or any payment on such Note (provided that (x) such declaration of non-residence or other claim or filing for exemption or such compliance is required by the applicable law of the Taxing Jurisdiction as a result precondition to exemption from, or reduction in the rate of the presentation imposition, deduction or withholding of, such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption or such Securities compliance is required under the applicable law of the Taxing Jurisdiction, the relevant Holder at that time has been notified by the Company, any Guarantor or any other Person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption or such compliance is required to be made);
(where presentation is required5) any Taxes that would not have been so imposed, deducted or withheld if the beneficiary of the payment had presented the Note for payment on a date more than within 30 days after the date on which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later, later (except to the extent that the beneficiary or holder thereof Holder would have been entitled to the payment of Additional Amounts had the Securities Note been presented for payment on any date during the last day of such 30-day period);
(d6) any Taxes imposed solely as a result of the failure of such holder payment under or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable Note to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company fiduciary or partnership or any person other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of such beneficial interests of such Offered Securitypayment or Note, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the such fiduciary, a member of such a partnership or a the beneficial owner of such payment or member of the partnership, limited liability company or other fiscally transparent entity, Note would not have been entitled to the payment of an Additional Amount Amounts had the such beneficiary, settlor, member or beneficial owner or member received directly its beneficial or distributive share been the actual Holder of the payment. In addition, no Additional Amounts will be paid on account such Note; or
(7) any combination of any Taxes imposed or withheld pursuant to Sections 1471 items (1) through 1474 of the Code (or any amended or successor version that is substantively comparable6) and any current or future regulations promulgated thereunder or official interpretations thereofabove. The foregoing provisions shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor Person to the Company or a Guarantor.
(c) The Company or the applicable Guarantor will also (i) make such any applicable withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction authority in accordance with all applicable lawslaw. The Company or the applicable Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available furnish to the holders of the Offered SecuritiesTrustee, within 90 30 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing or, if such tax receipts are not reasonably available to the Company or such Guarantor, such other documentation that provides reasonable evidence of such payment by the Guarantor Company or if, notwithstanding such Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence . Copies of such payments by Guarantor. receipts or other documentation will be made available to the Holders or the Paying Agents, as applicable, upon request.
(d) At least 30 days prior to each date on which any payment under or with respect to the Guarantees Notes is due and payable, unless such obligation to pay Additional Amounts arises after the 30th day prior to such date, in which case it shall be promptly paid thereafter, if the Company or any Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company or such Guarantor will deliver to the Trustee and the Paying Agents an Officer’s Officers' Certificate stating the fact that such Additional Amounts will be payable, payable and the amounts so payable and will set forth such other information as is necessary to enable such the Trustee and the Paying Agents to pay such Additional Amounts to holders Holders of Offered Securities Notes on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor Each Officers' Certificate shall be substituted for the date on which the Offered Securities was issued. relied upon until receipt of a further Officers' Certificate addressing such matters.
(e) Whenever in this Indenture, the Securities Indenture or the Guarantees Notes there is mentioned, in any context, the payment of principal and principal, premium, if any, redemption price, interest or of any other amount payable under or with respect to any SecurityNote, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The Company and the Guarantors will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in any jurisdiction from the execution, delivery, enforcement or registration of the Notes, this Indenture or any other document or instrument in relation thereto, excluding all such taxes, charges or similar levies imposed by any jurisdiction outside any jurisdiction in which the Company or any Guarantor or any successor Person is organized or resident for tax purposes or any jurisdiction in which a Paying Agent is located, and the Company and the Guarantors will agree to indemnify the Holders of the Notes for any such non-excluded taxes paid by such Holders.
Appears in 1 contract
Samples: Indenture (Crown Holdings Inc)
Payment of Additional Amounts. All payments made by Guarantors or the Guarantor Company under or with respect to the Securities and the Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless Guarantors or the Guarantor Company, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor Guarantors or the Company is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Securities or the Guarantees, as the Guarantor case may be, Guarantors or the Company, as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Global Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company Guarantors or the GuarantorCompany;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor Guarantors or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 1 contract
Samples: Indenture (IPERIONX LTD)
Payment of Additional Amounts. (a) All payments made by or on behalf of the Issuer under or with respect to the Notes or by a Guarantor under or with respect to the Guarantees its Guarantee will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature Taxes imposed or levied by or on behalf of any Taxing Jurisdiction Authority in (1) any jurisdiction in which the Issuer or any Guarantor is organized, engaged in business for tax purposes or is otherwise resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which payment is made by or on behalf of the Issuer or any Guarantor or any political subdivision thereof or therein (each, a “TaxesRelevant Taxing Jurisdiction”), unless the Issuer or Guarantor is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof. In .
(b) If the event that Issuer or any Guarantor is required to so withhold or deduct any amount for or on account of any Taxes imposed by a Relevant Taxing Jurisdiction, from any payment made under or with respect to the GuaranteesNotes or the Guarantee of such Guarantor including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Guarantor will Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder Holder of Securities Notes (including Additional Amounts) after such withholding or deduction will of Taxes shall equal the amount that such the Holder would have received if such Taxes had not been required to be withheld or deducted; provided provided, however, that no Additional Amounts will shall be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofTax:
(a1) any Taxes that are imposed would not have been imposed, payable or withheld solely because such holder or a fiduciary, settler, beneficiary, or member due but for the existence of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection between the Holder (or the beneficial owner of, or person ultimately entitled to obtain an interest in, such Notes) and the Relevant Taxing Jurisdiction (including being a citizen, resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) other than the mere fact holding of ownership the Notes or enforcement of rights under such Note or under a Guarantee or the receipt of payments in respect of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being Note or having been a citizen or resident thereof or being treated as being or having been a resident thereofGuarantee;
(iii2) with respect that would not have been imposed, payable or due but for the failure to satisfy any certification, identification or other reporting requirements whether imposed by statute, treaty, regulation or administrative practice as a precondition to exemption from, or reduction in the rate of withholding of, Taxes imposed by the United StatesRelevant Taxing Jurisdiction (including a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction), is or was with respect but in each case, only to the United States extent the Holder or beneficial owner is legally eligible to provide such certification or documentation; provided, however, that the Issuer has delivered a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings written request to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of Holder to comply with such requirements at least 30 days prior to the Company or the Guarantordate by which such compliance is required;
(b3) any that would not have been imposed, payable or due if the presentation of Notes (where presentation is required) for payment has occurred within 30 days after the date such payment was due and payable or was duly provided for, whichever is later (except to the extent the Holder would have been entitled to Additional Amounts if the Note had been presented on the last day of such 30-day period);
(4) that is an estate, inheritance, gift, sales, transfer, excise transfer or personal property Taxes Tax;
(5) that is imposed with respect to a Note pursuant to Sections 1471 to 1474 of the SecuritiesU.S. Internal Revenue Code of 1986, except as otherwise provided herein;amended as of the Issue Date (and any amended or successor version that is substantially comparable), any current or future regulations or agreements thereunder, official interpretations thereof or any law implementing an intergovernmental agreement relating thereto; or
(6) as a result of a combination of the foregoing clauses (1) through (5).
(c) In addition, Additional Amounts shall not be paid with respect to a payment on any Taxes imposed solely as Notes to a result of Holder that is not the presentation beneficial owner of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except Notes to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, thereof would not have been entitled to the payment of an such Additional Amount Amounts by reason of clauses (1), (2), (3), (4), (5) or (6) above had the beneficiary, settlor, such beneficial owner or member received directly its beneficial or distributive share been the Holder of the paymentsuch Notes. In addition, no Additional Amounts will not be paid on account of payable with respect to any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that Tax which is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such payable otherwise than by withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with in respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor Notes or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Guarantee.
(d) Whenever in this Indenture, Indenture or in the Securities or the Guarantees Notes there is mentioned, in any context, the payment of amounts based on the principal and premium, if any, redemption priceamount of the Notes or any Guarantee or of principal, interest or of any other amount payable under or with respect to any Securityof the Notes or any Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The Issuer or relevant Guarantor will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or relevant Guarantor will provide documentation reasonably satisfactory to the Trustee and the Paying Agent evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes, as soon as reasonably practicable to the Trustee and the Paying Agent. Such documentation shall be made available to the Holders by the Trustee and the Paying Agent upon reasonable request and will be made available at the offices of the Trustee and the Paying Agent.
(f) The Issuer and the Guarantors shall pay and indemnify the Trustee and the Paying Agent, the Security Agent and the Holders for any present or future stamp, issue, registration, court or documentary taxes, or any other excise or property taxes, charges or levies (including penalties, interest and any other reasonable expenses thereto) which arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance or registration of the Notes or any other document or instrument referred to therein, or the receipt of any payments with respect to or enforcement of, the Notes or any Guarantee.
(g) If the Issuer or relevant Guarantor is obligated to pay Additional Amounts under or with respect to any payment made on any Note or Guarantee, the Issuer or relevant Guarantor shall deliver to the Trustee and the Paying Agent, at least 30 days prior to the date of such payment, an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable and such other information necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 30 days prior to the relevant payment date, in which case the Issuer or relevant Guarantor may deliver such Officer’s Certificate as promptly as practicable thereafter). The Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary.
(h) Notwithstanding anything to the contrary contained in this Indenture, the Issuer and the Guarantors may, to the extent required to do so by law, deduct or withhold income or similar taxes imposed by the United States of America from any payments under this Indenture; provided that the foregoing shall not limit the obligation of the Issuer and the Guarantors to pay Additional Amounts as set forth in this Section 4.20.
(i) The provisions of this Section 4.20 shall survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer or any Guarantor is organized, engaged in business for tax purposes, resident for tax purposes and any jurisdiction from or through which such person makes any payment on the Note or Guarantee and or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Samples: Indenture (Global Ship Lease, Inc.)
Payment of Additional Amounts. (a) All payments made in respect of the Notes or any Guarantee thereof by or on behalf of the Guarantor under Company or with respect to the Guarantees will any Guarantor, shall be made free and clear of and without withholding or deduction for or on account of any present 71 or future taxes, duties, levies, impostsassessments, assessments or other governmental charges charges, including any related interest, penalties or additions to tax (“Taxes”) unless such withholding or deduction is required by law. If any deduction or withholding in respect of whatever nature any Taxes imposed or levied by or on behalf of (a) any Taxing Jurisdiction jurisdiction in which the Company or any Guarantor is or was incorporated, organized, or engaged in business or resident for tax purposes, or (“Taxes”b) any jurisdiction from or through which payment is made by or on behalf of the Company or any Guarantor (or any of their respective agents, including the jurisdiction of any Paying Agent) (each of (a) and (b), unless the Guarantor is and any political subdivision thereof or therein, a “Relevant Taxing Jurisdiction”) will at any time be required to withhold or deduct Taxes be made by law or by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct any amount for or on account applicable withholding agent in respect of any Taxes from any payment made under or with respect to the Guaranteesany Notes, or any Guarantee thereof, the Guarantor will Company or the relevant Guarantor, as applicable, shall pay such additional amounts (“Additional Amounts”) as may shall be necessary so in order that the net amount amounts received by each holder the beneficial owners of Securities (including Additional Amounts) the Notes, after such withholding or deduction will by such applicable withholding agent shall equal the amount that respective amounts which would otherwise have been received in respect of the Notes or Guarantee thereof, as applicable, in the absence of such Holder would have received if such Taxes had not been required to be withheld withholding or deducted; provided that no deduction.
(b) No Additional Amounts will shall be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofpayable:
(a1) in respect of any Taxes that are imposed or withheld solely because such by reason of the holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present beneficial owner having some current or former connection with the Relevant Taxing Jurisdiction (other than the mere fact of ownership holding or disposition of such Securities) with Note, the Taxing Jurisdiction imposing receipt of principal, interest or any other amount in respect of such TaxesNote or Guarantee, including being or having been a citizen the enforcement of such Note or resident thereof or being treated as being or having been a resident thereofGuarantee);
(iii2) in respect of any Taxes imposed or withheld by reason of the failure of the relevant holder or beneficial owner to satisfy or comply with respect (or cause any affiliate or owner of such holder or beneficial owner to satisfy or comply with) any certification, declaration, identification, information or other requirements required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction as a precondition to any applicable exemption from, or reduction in the rate of deduction or withholding of, such Taxes imposed by the United StatesRelevant Taxing Jurisdiction (including, is or was with respect without limitation, a declaration of non-residence), but, in each case, only to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization extent such holder or corporation that has accumulated earnings beneficial owner is legally eligible to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantordo so;
(b3) in respect of any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with otherwise than by withholding from payments under or in respect to of the Securities, except as otherwise provided hereinNotes or Guarantee;
(c4) in respect of any Taxes that would not have been imposed solely as a result but for the presentation by the holder of the presentation of such Securities (Note, where presentation is required) , for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is occurs later, except to the extent that the beneficiary such holder or holder thereof beneficial owner would have been entitled to the payment of Additional Amounts had the Securities such Note been presented for payment on any date during the last day of such 30-day period;
(d5) in respect of any Taxes imposed solely as a result pursuant to current Sections 1471 through 1474 of the failure of such holder Code (or any other person amended or successor provisions that are substantively comparable and not materially more onerous to comply with applicable certificationwith), informationany current or future regulations thereunder or any official interpretations thereof, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation any agreement entered into pursuant to current Section 1471(b) of the relevant Taxing Jurisdiction as a precondition to relief Code (or exemption from such Taxesany amended or successor provision described above) or any intergovernmental agreement (and any related laws, regulations or official administrative guidance) implementing the foregoing;
(e6) with in respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding estate, inheritance, gift, sales, transfer, wealth or deduction by personal property Tax or similar Tax, or excise tax imposed on the Guarantor or transfer of the Company or any paying agent from payments in respect of such SecuritiesNotes;
(g7) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder beneficial owner of the Notes, or holder a portion of such beneficial interests of such Offered Securitythe Notes, as the case may be. This exceptionor that is a fiduciary, howeverpartnership or other flow-through entity, will apply but only to the extent that a beneficial owner with respect to the holder, a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company partnership or other fiscally transparent entity, flow-through entity would not have been entitled to the payment of an Additional Amount Amounts had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment; and
(8) in respect of any combination of items (1), (2), (3), (4), (5), (6) and/or (7).
(c) The Company and the Guarantors shall pay any present or future stamp, issue, registration, court, documentary, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, issuance, initial delivery, or initial registration (and in any jurisdiction from the enforcement) of the Notes, any Guarantee thereof, this Indenture or any other document or instrument referred to herein.
(d) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable to the notes. In additionExcept as specifically provided in this Section 4.18, no Additional Amounts neither the Company, nor any Guarantor, will be paid on account of required to make any payment for any Taxes imposed required by any government or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any a political subdivisions subdivision or taxing authority of or agency thereof in any government or therein; provided, however, political subdivision to be withheld from any payment in respect of the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever Notes.
(e) Wherever in this Indenture, the Securities Indenture or the Guarantees Notes, there is mentioned, in any context, context (i) the payment of principal and premium, if any, principal; (ii) the redemption price, interest prices or purchase prices in connection with a redemption or purchase of Notes; (iii) interest; or (iv) any other amount payable under on or with respect to any Securitythe Notes, such mention reference shall be deemed to include mention of the payment of Additional Amounts as described under this Section 4.18 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The Obligations of the Company or any Guarantor under this Section 4.18 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor to the Company or such Guarantor, as applicable, and any jurisdiction in which any successor Person to the Company or such Guarantor is incorporated, organized, or engaged in business or resident for tax purposes, or any jurisdiction from or through which such Person (or its Paying Agent) makes any payment under or with respect to the Notes or any Guarantee thereof and, in each case, any political subdivision thereof or therein.
Appears in 1 contract
Samples: Indenture (Adient PLC)
Payment of Additional Amounts. (a) All payments made by the Company or any Guarantor under or with respect to the Guarantees Notes will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxestax, dutiesduty, leviesassessment, imposts, assessments or other governmental charges charge of whatever nature imposed, levied, collected, withheld or assessed (including any penalties and interest related thereto) (“Taxes”) unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of (i) any Taxing Jurisdiction jurisdiction in which the Company, (including any Successor Company) or any Guarantor (or any Successor Guarantor), are then incorporated, engaged in business, organized or otherwise resident for tax purposes or any political subdivision or governmental authority thereof or therein having the power to tax or (ii) any jurisdiction from or through which payment is made by or on behalf of the Company (including, without limitation, the jurisdiction of any Paying Agent) (each of (i) and (ii), a “TaxesTax Jurisdiction”), unless the Guarantor is will at any time be required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes be made from any payment payments made under or with respect to the GuaranteesNotes, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Guarantor Company (or the applicable Guarantor) will pay such additional amounts (the “Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by each holder Holder or Beneficial Owner of Securities (including Additional Amounts) Notes after such withholding or deduction (including any such withholding or deduction from such Additional Amounts) will equal the amount respective amounts that such Holder would have been received if in respect of such Taxes had not been required to be withheld payments in the absence of such withholding or deducteddeduction; provided provided, however, that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofto:
(a1) any Taxes that to the extent such Taxes would not have been imposed but for the Holder or the Beneficial Owner of the Notes being a citizen or resident or national of, or incorporated in, the relevant Tax Jurisdiction in which such Taxes are imposed or having any other present or former connection with the relevant Tax Jurisdiction other than the mere acquisition, holding, exercise or enforcement of rights, or receipt of payment in respect of the Notes or under the applicable Note Guarantee;
(2) any Taxes to the extent such Taxes are imposed or withheld solely because as a result of the failure of the Holder of the Note or Beneficial Owner of the Notes to comply, to the extent such holder Holder is legally entitled, with any reasonable written request, made by the Company or a fiduciaryany Guarantor to that Holder or Beneficial Owner in writing at least 90 days before any such withholding or deduction would be payable, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) to provide information concerning the nationality, residence or identity of such Holder or Beneficial Owner or (ii) to make any valid and timely declaration or similar claim or satisfy any certification information or other reporting requirement, which, in either case, is required or was present imposed by a statute, treaty, regulation or engaged in, administrative practice of the relevant Tax Jurisdiction as a precondition to any exemption from or is reduction in all or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdictionpart of such Taxes;
(ii3) has or any Taxes to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had any present or former connection (other than the mere fact of ownership Note been presented on the last day of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof30 day period);
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b4) any estate, inheritance, gift, salessale, transfer, excise or excise, personal property Taxes imposed with respect to the Securities, except as otherwise provided hereinor similar Taxes;
(c5) any Taxes imposed solely as on or with respect to any payments to any Holder who is a result of fiduciary, partnership or other person other than the presentation sole Beneficial Owner of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary Beneficial Owner of such fiduciary, partnership or holder thereof other person would not have been entitled to the payment of Additional Amounts had such Beneficial Owner been the Securities been presented for payment on any date during such 30-day periodHolder of the Note;
(d6) any Taxes withheld, deducted or imposed solely as on a result of the failure of such holder or any other person payment to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes an individual that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of 3 June 32003 (as amended, 2003 modified or replaced from time to time, including by Council Directive 2014/48/EU of 24 March 2014) or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26 and 27, 2000 on the taxation of savings income in the form of interest payments, or any amendment thereofincome, or any law implementing or complying with, with or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amendedsuch directives;
(i7) any Taxes payable other than by deduction or withholding from payments under or deduction for Taxes which would not have been imposed if with respect to, the relevant Securities had been presented to another paying agent in a Member State of Notes or under the European UnionNote Guarantee; or
(j) 8) any combination of Section 3.02(a), items (1) through (7) above.
(b)) The Company or a Guarantor, as applicable, will also pay and indemnify the Holder for any present or future stamp, issue, registration, value added, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and any other reasonable expenses related thereto) or Taxes which are levied by any Tax Jurisdiction on the execution, delivery, registration or enforcement of any of the Notes, this Indenture, any Note Guarantee, or any other document or instrument referred to therein or the receipt of payments with respect thereto.
(c), (d), (e), (f), (g), (h) and (i). If the Company or any Guarantor become obligated to pay Additional Amounts will not be payable with respect to any payment under or for with respect to the account of Notes or any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residenceNote Guarantee, if the Company were treated or any Guarantor, as applicable, will deliver to the Trustee on a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate date that is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 30 days prior to the first date of that payment date with respect (unless the obligation to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. pay Additional Amounts also arises after the 30th day prior to that payment date, in which case the Company will not be payable to notify the Trustee promptly after such obligation arises (and in any Holder or event within five Business Days thereof)) an Officers’ Certificate stating the holder of a beneficial interest in an Offered Security fact that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid payable and the amount estimated to be so payable. The Officers’ Certificate must also set forth any other information reasonably necessary to enable the Paying Agents to pay Additional Amounts to Holders on account of any Taxes imposed or withheld pursuant the relevant payment date. The Trustee shall be entitled to Sections 1471 through 1474 of the Code (rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary. The Company or any amended Guarantor, as applicable, will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts.
(d) The Company or successor version that is substantively comparable) any Guarantor, as applicable, will make all withholdings and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor deductions required by law and will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction governmental authority in accordance with all applicable lawslaw. The Guarantor Upon request, the Company or any Guarantor, as applicable, will use its commercially reasonable efforts provide to obtain certified copies of tax the Trustee an official receipt or, if official receipts are not obtainable, other documentation reasonably satisfactory to the Trustee evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior and will attach to each date on which any payment under official receipt or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee other documentation an Officer’s Officers’ Certificate stating the fact that amount of such Additional Amounts Taxes paid per $1,000 principal amount of the Notes then outstanding. Upon request, copies of those official receipts or other documentation, as the case may be, will be payablemade available by the Trustee to the Holders of the Notes.
(e) This Section 4.20 will survive termination, the amounts so payable defeasance pursuant to Article 8 or discharge pursuant to Article 11 of this Indenture, any transfer by a Holder or Beneficial Owner of its Notes and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor person to the Guarantor Company or any successor Person to the Guarantor is organized or is incorporated, engaged in business or resident for tax purposes or any jurisdiction from or through which such person makes any payment on the Notes (or any Note Guarantee) and any department or political subdivisions or taxing authority or agency subdivision thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 1 contract
Payment of Additional Amounts. All payments made (a) Unless otherwise required by law, neither the Issuer nor the Guarantor under (including, for the purposes of this Section 4.07, any successor to the Issuer or the Guarantor) shall deduct or withhold from payments and deliveries made with respect to the Guarantees will be made free Notes and clear the Guarantee, including, but not limited to, payments of principal (including, if applicable, the Fundamental Change Repurchase Price or Redemption Price), payments of interest and without withholding payments of cash and/or deliveries of Common Shares or deduction for or other Reference Property, if any, upon exchange, on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature (including, without limitation, penalties and interest and other similar liabilities related thereto) (“Taxes”) imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless political subdivisions or taxing authorities in having the power to tax. The Issuer or the Guarantor is required to shall withhold or deduct any Taxes as required by law or by the interpretation or administration thereofapplicable law. In the event that any such payment or delivery by or on behalf of the Issuer or the Guarantor is required subject to so withhold withholding or deduct any amount for or deduction on account of any Bermuda Taxes due from any such payment or delivery made under or with respect to the GuaranteesNotes or the Guarantee, as the case may be, the Guarantor will Issuer or the Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as may be necessary Amounts so that the net amount received by each holder Holder of Securities (including Additional Amounts) after such withholding or deduction Notes will equal the amount that such Holder would have received if such the Bermuda Taxes had not been required to be withheld or deducted; provided . The amounts that no the Issuer or the Guarantor are required to pay to preserve the net amount receivable by the Holders of the Notes are referred to as “Additional Amounts will Amounts.”
(b) Additional Amounts, however, shall not be payable with respect to a payment or delivery made to a holder Holder of the Offered Securities or a holder of a beneficial interests in Notes to the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holderextent:
(i) is or was that any Bermuda Taxes would not have been so imposed but for the existence of any present or engaged informer connection between the Holder and Bermuda other than the mere receipt of the payment, the acquisition, ownership or is disposition of such Notes or was treated as present the exercise or engaged inenforcement of rights under the Notes, a trade the Guarantee or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdictionthis Indenture;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise transfer or personal property Taxes imposed with respect to the SecuritiesNotes, except as described below or as otherwise provided hereinin this Indenture;
(ciii) that any such Bermuda Taxes would not have been imposed solely as a result of but for the presentation of such Securities (the Notes, where presentation is required) , for payment on a date more than 30 days after the date on which such the payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder Holder thereof would have been entitled to the payment of Additional Amounts had the Securities Notes been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(jiv) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for that the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be liable or subject to such withholding or deduction of Bermuda Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or such Holder is legally entitled to provide a certificate declaring its non-residencemake, if the Company were treated as a domestic corporation under United States federal income tax and if if:
(xA) the making of such the declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority taxing authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and ; and
(yB) at least 90 30 days prior to the first payment date with respect to which the Issuer or the Guarantor shall apply this paragraphclause, the Issuer or the Guarantor shall have notified all Holders of Offered Securities the Notes in writing that they shall be required to provide such this declaration or claim. Additional Amounts also will not be payable to any Holder or .
(c) the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not Issuer and the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also also:
(i) make withhold or deduct such withholding or deduction of Bermuda Taxes and as required;
(ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction taxing authority in accordance with all applicable laws. The Guarantor will ;
(iii) use its commercially reasonable efforts to obtain from each relevant taxing authority imposing the Taxes certified copies of tax receipts evidencing the payment of any Taxes so taxes deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, withheld; and
(iv) upon request, make available to the holders Holders of the Offered SecuritiesNotes, within 90 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax Tax receipts evidencing such payment by the Issuer and the Guarantor or ifand, notwithstanding the Issuer or the Guarantor’s efforts to obtain such the receipts, if the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior payments.
(d) The Issuer or the Guarantor shall pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in Bermuda or the United States or any political subdivision or taxing authority of or in the foregoing (or in any jurisdiction in the case of enforcement) with respect to each date on which any payment under the creation, issue, offering, enforcement, or retirement of the Notes or the Guarantee or with respect to payments or deliveries on the Guarantees is due Notes or the Guarantee (other than, in the case of such taxes with respect to payments or deliveries, any taxes excluded from Additional Amounts as described above).
(e) If payments with respect to the Notes or the Guarantee become subject generally to the taxing jurisdiction of any Territory or any political subdivision or taxing authority having power to tax, other than or in addition to any political subdivision or taxing authority in Bermuda having the power to tax, immediately upon becoming aware thereof the Issuer shall notify the Trustee of such event, and payablethe Issuer or the Guarantor, if as the Guarantor will be obligated to case may be, shall pay Additional Amounts with in respect to such payment, the Guarantor will deliver thereof on terms corresponding to the Trustee an Officer’s Certificate stating terms of the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The foregoing provisions of this Article II shall survive any termination of Section 4.07 with the discharge of this Indenture and shall apply mutatis mutandis substitution for (or, as the case may be, in addition to) the references herein to any political subdivisions or taxing authority in Bermuda having the power to tax with references to that other or additional Territory or any political subdivision or taxing authority having the power to tax to whose taxing jurisdiction such payments shall have become subject as aforesaid. The term “Territory” means for this purpose any jurisdiction (other than the United States or any political subdivision or taxing authority therein) in which the Guarantor Issuer or any successor Person to the Guarantor, as the case may be, is incorporated or in which the Issuer or the Guarantor is organized has its place of central management or is engaged in central control or otherwise resident or doing business for tax purposes or any jurisdiction (other than the United States or any political subdivisions subdivision or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in ) of any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofPaying Agent.
Appears in 1 contract
Samples: Indenture (Nabors Industries LTD)
Payment of Additional Amounts. All payments made by (a) The Company and the Guarantor under or Guarantors shall pay any amounts due with respect to payments on the Guarantees will be made free Securities without deduction or withholding for any and clear of all present and without future withholding taxes, levies, imposts and charges (each, a “Withholding Tax”) imposed by or deduction for or on the account of any present jurisdiction (a) in which the Company or future taxesGuarantor (as applicable) is incorporated, dutiesorganized, leviesmanaged, impostscontrolled or resident for tax purposes; (b) in which a branch, assessments office, assets, or governmental charges permanent establishment of whatever nature imposed the Company or levied by Guarantor (as applicable) is located; or on behalf (c) from or through which the relevant payment is made, or any political subdivision or taxing authority of any such jurisdiction (the “Taxing Jurisdiction (“TaxesJurisdiction”), unless the Guarantor such withholding or deduction is required by law.
(b) If the Taxing Jurisdiction requires the Company or a Guarantor to deduct or withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes Withholding Tax from any payment made under or with respect pursuant to the GuaranteesSecurity or this Indenture, the Guarantor will Company or the Guarantors, as applicable, shall (subject to compliance by the Holder with any relevant administrative requirements) pay to the Holder such additional amounts (“Additional Amounts”) as may be necessary so that the net amount will result in such Holder’s receipt of such amounts as it would have received by each holder of Securities (including Additional Amounts) after had no such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable in accordance with respect to a payment to a holder the terms of the Offered Securities or a holder of a beneficial interests in and this Indenture; provided, however, that the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account offoregoing shall not apply to:
(a1) any Taxes Withholding Tax that are imposed would not be payable or withheld solely because such holder due but for the fact that (1) the Holder of a Security (or a fiduciary, settlersettlor, beneficiarybeneficiary of, member or member of shareholder of, such holder Holder, if such holder Holder is an estate, trust, partnershippartnership or corporation) is a domiciliary, limited liability company national or other fiscally transparent entityresident of, or engaging in business or maintaining a person holding a power over an estate permanent establishment or trust administered by a fiduciary holder:
(i) is fixed base or was being physically present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any otherwise having some present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing other than the holding or ownership of the Security or the collection of the principal amount, redemption price and interest (if any), in accordance with the terms of the Security and this Indenture, or the enforcement of the Security or (2) where presentation is required, the Security was presented more than thirty (30) days after the date such Taxespayment became due or was provided for, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereofwhichever is later;
(iii2) with respect any Withholding Tax attributable to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or excise, personal property Taxes imposed with respect to the Securitiesor similar tax, except as otherwise provided hereinlevy, impost or charge;
(c3) any Taxes imposed solely as a result Withholding Tax attributable to any tax, levy, impost or charge that is payable otherwise than by withholding from payment of the presentation of such Securities principal amount, redemption price and interest (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day periodif any);
(d4) any Taxes Withholding Tax that would not have been imposed solely as a result of but for the failure of such holder or any other person to comply with applicable certification, identification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection connections with the Taxing Jurisdiction relevant tax authority of such holderthe Holder or beneficial owner of a Security, if such (A) this compliance is required by statute or by regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such TaxesWithholding Tax, and (B) at least thirty (30) days prior to the first scheduled payment date for which compliance will be required, the Company has notified Holders or beneficial owners of Securities that they must comply with such certification, identification, information, documentation or other reporting requirements;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f5) any Taxes that are payable by any method other than withholding Withholding Tax to the extent (i) the Holder is entitled to a refund or deduction by credit in the Guarantor or the Company or any paying agent from payments in respect Taxing Jurisdiction of such Securities;
(g) any Taxes amounts required to be withheld by any paying agent from any payment in respect such Taxing Jurisdiction and (ii) such Holder is unable to provide evidence of any Securities if its inability to obtain such payment can be made without such withholding by at least one other paying agent;
refund or credit within ten (h10) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State days of the European UnionCompany notifying such Holder of the application of this Section 12.01(b)(5); or
(j6) any combination of the instances described in (1) through (5).
(c) With respect to Section 3.02(a12.01(b)(5) above, in the absence of evidence satisfactory to the Company (except in a circumstance described in Section 12.01(b)(5)(ii)), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of Company may conclusively presume that a Holder is entitled to a refund or the holder credit of a beneficial interest in an Offered Security all amounts required to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the be withheld. The Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall not be required to provide such declaration or claim. pay any Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that who is a fiduciary, partnership, limited liability company fiduciary or partnership or other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only Security to the extent that a beneficiary or settlor with respect to the such fiduciary, or a member of such partnership or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entitythereof, would not have been entitled to the payment of an such Additional Amount Amounts had the such beneficiary, settlor, member or beneficial owner or member received directly its beneficial or distributive share been the Holder of the payment. In additionSecurity.
(d) If reasonably requested by any Holder, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld Company shall furnish to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts Trustee documentation reasonably satisfactory to obtain certified copies of tax receipts the Trustee evidencing the payment of any Withholding Taxes so deducted or withheld from each Taxing Authority imposing with respect to payments on the Securities. Copies of such Taxes. The Guarantor will, upon request, make receipts will be made available to the holders Holders of the Offered Securities, within 90 days after Securities or beneficial owners of the date Securities upon written request. The Trustee will have no duty to determine whether any Additional Amounts are payable or the payment of amount thereof.
(e) If the Company or any Taxes so deducted or withheld Guarantor is due pursuant to required by any applicable law, certified copies as modified by the practice of tax receipts evidencing the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any Withholding Tax in respect of which such obligor would be required to pay an Additional Amount, but for any reason does not make such deduction or withholding with the result that a liability in respect of such Withholding Tax is assessed directly against any Holder, and such Holder pays such liability, then the Company or the Guarantors will promptly reimburse the Trustee for the benefit of such applicable Holder, for such payment (including any related interest or penalties to the extent such interest or penalties arise by virtue of a default or delay by the Guarantor Company or if, notwithstanding any Guarantor’s efforts ) upon demand by such Holder accompanied by any official receipt (or a duly certified copy thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction.
(f) All references in this Indenture or the Securities to obtain such receipts, the same are not obtainable, “interest” or other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or amounts payable with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Securities shall include (without duplication) any Additional Amounts due with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereto.
Appears in 1 contract
Samples: Indenture (Noble Finance Co)
Payment of Additional Amounts. All payments made by the Company or the Guarantor under or with respect to the Guarantees Securities and any Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless the Guarantor Company or Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that the Company or Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the GuaranteesSecurities or the Guarantee, as the case may be, the Guarantor Company or Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Global Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder (or the beneficial owner for whose benefit such holder holds such Securities) or a fiduciary, settlersettlor, beneficiary, member, shareholder or member other equity owner of, or possessor of a power over, such holder (or beneficial owner) if such holder (or beneficial owner) is an estate, trust, partnership, limited liability company company, corporation or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i1) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction (in each case, other than the mere fact of ownership of such Securities, without another presence or business in such Taxing Jurisdiction);
(ii2) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a national citizen or resident thereof or thereof, being treated as being or having been a resident thereofthereof or being or having been physically present therein;
(iii3) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign private foundation or other foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or;
(iv4) actually or constructively owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or Guarantor within the Guarantor;meaning of Section 871(h)(3) of the Code; or
(5) is or was a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3) of the Code.
(b) any estate, inheritance, gift, sales, transfer, excise or excise, personal property or similar Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 15 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 3015-day period;
(d) any Taxes imposed or withheld solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute statute, regulation, ruling or regulation administrative practice of the relevant Taxing Jurisdiction or by any applicable tax treaty to which the relevant Taxing Jurisdiction is a party as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Company or a Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State country that is a member of the European Union; Union as of the date of this Indenture;
(i) any withholding or deduction required pursuant to sections 1471 through 1474 of the Code, any regulations or agreements thereunder, official interpretations thereof, any intergovernmental agreement, or any law, rule, guidance or administrative practice implementing an intergovernmental agreement entered into in connection with such sections of the Code or;
(j) any combination of Section 3.02(a15.02(a), (b), (c), (d), (e), (f), (g), (h) and or (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered a Global Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In additionThe Company or Guarantor, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of as the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor case may be, will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor Company or Guarantor, as applicable, will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor Company or Guarantor, as the case may be, will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company or Guarantor or if, notwithstanding the Company’s or applicable Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by the Company or Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees Securities or the Guarantee is due and payable, if the Company or a Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company or Guarantor will deliver to the Trustee an Officer’s Officers’ Certificate stating the fact that such Additional Amounts will be payable, payable and the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. In addition, the Company will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in The Netherlands or the United States or any political subdivision or taxing authority of or in the foregoing in respect of the creation, issue, offering, enforcement, redemption or retirement of the Securities. The provisions of this Article II XV shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Company or a Guarantor or any successor Person to the Guarantor Company or Guarantor, as the case may be, is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Company or Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor Company or applicable Guarantor, as the case may be, shall be substituted for the date on which the Offered series of Securities was issued. Whenever in this Indenture, the Securities or the Guarantees Guarantee there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.. [Signatures on following page]
Appears in 1 contract
Samples: Indenture (Thermo Fisher Scientific (Finance I) B.V.)
Payment of Additional Amounts. (a) All payments made by of, or in respect of, principal of, and any premium and interest on, the Guarantor under or with respect to the Guarantees will Notes shall be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxes, duties, levies, imposts, assessments or other governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction taxing authority within Australia or any other jurisdiction (other than the United States of America, any state, possession or territory thereof, the District of Columbia or any political subdivision or taxing authority of any of the foregoing) in which Newcrest Finance is or becomes resident for taxpurposes (whether by merger, consolidation or otherwise) (each a “TaxesRelevant Jurisdiction”)) or any political subdivision or taxing authority of any of the foregoing, unless the Guarantor is such taxes, duties, assessments or other governmental charges are required to withhold or deduct Taxes by law or by the interpretation Relevant Jurisdiction or administration thereofany political subdivision or taxing authority thereof or therein to be withheld or deducted. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Guaranteesevent, the Guarantor Newcrest Finance will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder will result (after deduction of Securities (including such taxes, duties, assessments or governmental charges and any additional taxes, duties, assessments or other governmental charges payable in respect of such Additional Amounts) after in the payment to the Holder of each Note of the amounts which would have been payable in respect of such Note had no such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided required, except that no Additional Amounts will shall be so payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a1) any Taxes that are imposed or withheld solely because such holder or a fiduciarywithholding, settlerdeduction, beneficiarytax, or member of such holder if such holder is an estateduties, trust, partnership, limited liability company assessment or other fiscally transparent entity, governmental charge which would not have been imposed but for the fact that such Holder or a person holding a power over an estate or trust administered by a fiduciary holderbeneficial owner of the Note:
(ia) is was a resident, domiciliary or was present national of, or engaged in, in business or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had maintained a permanent establishment in or was physically present in, the Taxing Jurisdiction;
(ii) has Relevant Jurisdiction or otherwise had any present or former some connection (with the Relevant Jurisdiction other than the mere fact ownership of, or receipt of ownership of payment under, such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the GuarantorNote;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of presented such Securities Note (where presentation is required) for payment on a date in any Relevant Jurisdiction, unless such Note could not have been presented for payment elsewhere; or
(c) presented such Note (where presentation is required) more than 30 thirty (30) days after the date on which the payment in respect of such payment Note first became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof Holder would have been entitled to the payment of such Additional Amounts if it had the Securities been presented such Note for payment on any date during day within such period of thirty (30-day period) days;
(d2) any Taxes imposed solely as a result of the failure estate, inheritance, gift, sale, transfer, personal property or similar tax, duties, assessment or other governmental charge or any withholding or deduction on account of such holder or any other person to comply with applicable certificationtax, informationduties, documentation assessment or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxesgovernmental charge;
(e3) with any tax, duties, assessment or other governmental charge which is payable otherwise than by withholding or deduction from payments of (or in respect to withholding Taxes of) principal of, or any premium and interest on, the Note;
(4) any withholding, deduction, tax, duties, assessment or other governmental charge that is imposed by the United States, any such Taxes imposed or withheld by reason of the failure to comply by the Holder of such holder Note or, in the case of a Global Note, the beneficial owner of such Global Note, with a request of Newcrest Finance or any Paying Agent addressed to fulfill such Holder or beneficial owner, as the statement requirements case may be, (a) to provide information concerning the nationality, residence or identity of sections 871(hsuch Holder or such beneficial owner, or an appropriate taxfile number, or other number or exemption details, or (b) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (a) or 881(c(b), is required or imposed by a statute, treaty, regulation or administrative practice of any Relevant Jurisdiction or any political subdivision or taxing authority thereof or therein as a precondition to exemption from all or part of such withholding, deduction, tax, duties, assessment or other governmental charge;
(5) any withholding, deduction, tax, duties, assessment or other governmental charge which is imposed or withheld by reason of such Holder being an associate of Newcrest Finance for the purposes of Section 128F(9) of the CodeIncome Tax Assessment Act 1936 (the “Australian Tax Act”) of Australia or by reason of the Australian Commissioner of Taxation giving a notice under section 255 of the Australian Tax Act of Australia or section 260-5 of Schedule One of the Taxation Administration Act 1953 of Australia;
(f6) any Taxes that are payable by any method other than withholding or deduction with respect to any tax, duties, assessment or other governmental charge imposed by the Guarantor United States of America, any state, possession or territory thereof, the Company District of Columbia or any paying agent from payments in respect political subdivision or taxing authority of such Securitiesany of the foregoing;
(g7) any Taxes withholding or deduction required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest paymentsor any directive supplementing, implementing, or any amendment thereof, replacing such Directive or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amendedsuch Directives;
(i) 8) any tax, assessment, withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State required by sections 1471 through 1474 of the European UnionCode (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(j9) any combination of Section 3.02(aitems (1), (b2), (c3), (d4), (e5), (f6), (g), (h7) and (i). 8); nor shall Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date paid with respect to which the Guarantor shall apply this paragraphany payment of, or in respect of, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide principal of, or any premium or interest on, any such declaration or claim. Additional Amounts also will not be payable Note to any such Holder or the holder of a beneficial interest in an Offered Security that who is a fiduciary, partnership, limited liability company fiduciary or partnership or other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only payment to the extent that such payment on a Note would, under the laws of a Relevant Jurisdiction or any political subdivision or taxing authority thereof or therein, be treated as being derived or received for taxpurposes by a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of such partnership or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, who would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, had it been the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination Holder of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Note.
(b) Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the any payment of or in respect of the principal and premiumof, if any, redemption price, interest or any other amount payable under premium or with respect to interest on, any SecurityNote, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to this Indenture, and any express mention of the payment of Additional Amounts in any provisions of this Indenture shall not be construed as excluding Additional Amounts in those provisions of this Indenture where such express mention is not made. Where Additional Amounts are payable in respect of any interest payments, such Additional Amounts will not be considered to be interest for the purposes of this Indenture.
(c) The obligation to pay Additional Amounts will apply to any successor Person to Newcrest Finance, subject to the same exceptions set forth above.
Appears in 1 contract
Samples: Indenture
Payment of Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor under or with respect to the Guarantees Securities or any Guarantee, as applicable, will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxestax, dutiesduty, levieslevy, impostsimpost, assessments assessment or other similar governmental charges of whatever nature imposed charge, including any interest, additions to tax, or penalties applicable thereto (collectively, “Taxes”) unless such withholding or deduction is required by law. In the event that any such withholding or deduction for, or on account of, any Taxes is levied by or on behalf of:
(i) Bermuda or any other jurisdiction in which the Company or any Guarantor is incorporated or organized, has its place of central management or central control or is otherwise engaged in business or resident for tax purposes or any political subdivision or taxing authority thereof (other than the United States or any political subdivision or taxing authority thereof); or
(ii) any jurisdiction from or through which payment is made by or on behalf of the Company or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision or taxing authority thereof (other than the United States or any political subdivision or taxing authority thereof); (each of clauses (i) and (ii), a “Relevant Taxing Jurisdiction (“TaxesJurisdiction”), unless the Guarantor is required to withhold Company or deduct Taxes by law or by the interpretation or administration thereof. In relevant Guarantor, as the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Guaranteescase may be, the Guarantor will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder Holder (or beneficial owner) of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such the Holder (or beneficial owner) would have received if such the Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment made to a holder of Holder to the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofextent:
(a1) that any Taxes that are would not have been so imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member but for the existence of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection between the Holder (or beneficial owner of the Securities) and the Relevant Taxing Jurisdiction, other than any connection arising solely from the mere fact receipt of the payment, acquisition, ownership or disposition of such Securities or the exercise or enforcement of rights under the Securities) with , the Taxing Jurisdiction imposing such Taxes, including being Guarantees or having been a citizen or resident thereof or being treated as being or having been a resident thereofthis Indenture;
(iii2) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise transfer or personal property Taxes imposed with respect to the SecuritiesSecurities or any other Taxes payable other than by withholding or deduction, except as described below or as otherwise provided hereinin this Indenture;
(c3) that any such Taxes would not have been imposed solely as a result of but for the presentation of such Securities (the Securities, where presentation is required) , for payment on a date more than 30 days after the date on which such the payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder Holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d4) any Taxes imposed solely as a result of that the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder beneficial owner of a beneficial interest in an Offered Security if such payment Securities would not be liable or subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residenceexemption, if the Company were treated as a domestic corporation under United States federal income tax and if if: (xa) the making of such the declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority taxing authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and ; (yb) at least 90 60 days prior to the first payment date with respect to which the Company or such Guarantor shall apply this paragraphclause (iv), the Company or such Guarantor shall have notified all Holders of Offered Securities in writing that they or any beneficial owners of the Securities shall be required to provide this declaration or claim; and (c) the Holder or beneficial owner of Securities is legally eligible to provide such declaration or claim. Additional Amounts also will not be payable ;
(5) any Taxes imposed under Sections 1471 through 1474 of the Code, any successor law or regulation implementing or complying with, or introduced in order to conform to, such Sections, any agreement entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any Holder such intergovernmental agreement;
(6) any Taxes imposed on overall net income or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent any branch profits Taxes;
(7) that a beneficiary or settlor with respect to the a fiduciary, a member of a partnership or a the beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, payment would not have been entitled to the payment of an Additional Amount Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of a Security in the case of a Holder that is a fiduciary or member received directly its partnership or a person other than the sole beneficial owner of any such payment;
(8) or distributive share any combination of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed and/or withholdings or withheld pursuant to Sections 1471 deductions described in the foregoing clauses (1) through 1474 of the Code (or any amended or successor version that is substantively comparable7).
(b) The Company and any current or future regulations promulgated thereunder or official interpretations thereof. The such Guarantor will shall also (i) make withhold or deduct such withholding or deduction of Taxes and as required; (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction taxing authority in accordance with all applicable laws. The Guarantor will ; (iii) use its commercially reasonable efforts to obtain from each relevant taxing authority imposing the Taxes certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, withheld; and (iv) upon request, make available to the holders Holders of the Offered Securities, within 90 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax Tax receipts evidencing such payment by the Company or such Guarantor or ifand, notwithstanding the Company’s or such Guarantor’s efforts to obtain such the receipts, if the same are not obtainable, other evidence of such payments by Guarantorpayments. Each Holder and beneficial owner of the Securities agrees that it shall, upon the request of an applicable withholding agent, provide an applicable IRS Form W-8 or W-9 to the applicable withholding agent.
(c) In addition, the Company or any Guarantor will pay any stamp, issue, registration, documentary or other similar Taxes payable in any Relevant Taxing Jurisdiction or the United States with respect to the creation, issue, offering, enforcement, redemption or retirement of the Securities or Guarantees.
(d) At least 30 days prior to each date on which any payment under or with respect to the Guarantees Securities is due and payable, if the Company or any Guarantor will be becomes obligated to pay Additional Amounts with respect to such payment, the Guarantor will Company (or in respect of the Guarantees, such Guarantor) shall deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, and the amounts so payable and will set forth such other information as is necessary to enable such the Trustee or the Paying Agent to pay such Additional Amounts to holders of Offered Securities the Holders on the payment date. The provisions of this Article II shall survive any termination of the discharge of .
(e) All references in this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal of and premium, if any, redemption priceAdditional Amounts, if any, or interest (including defaulted interest), if any, or any other amount payable under on or with respect to any Security, such mention of the Securities shall be deemed to include mention of the payment of Additional Amounts provided for in this Section 3.08 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to the provisions of this Section 3.08, and express mention of the payment of Additional Amounts in those provisions in this Indenture shall not be construed as excluding Additional Amounts where such express mention is not made (if applicable).
Appears in 1 contract
Samples: Indenture (Nabors Industries LTD)
Payment of Additional Amounts. All payments made by the Guarantor Issuer or the Company under or with respect to the Guarantees Notes will be made free and clear of of, and without withholding or deduction for or on account of of, any present or future taxestax, dutiesduty, levieslevy, impostsimpost, assessments assessment or other governmental charges of whatever nature charge imposed or levied by or on behalf of the Government of Canada or of any Taxing Jurisdiction province or territory thereof or by any authority or agency therein or thereof having power to tax (hereinafter “Taxes”), unless the Guarantor Issuer or the Company (as applicable) is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In If the event that Guarantor Issuer or the Company is so required to so withhold or deduct any amount for or on account of any Taxes from any payment made by it under or with respect to the GuaranteesNotes and the Notes are not redeemed in accordance with the provisions of Section 2.9 of this Fourth Supplemental Indenture, the Guarantor Issuer or the Company (as applicable) will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities Holder or beneficial owner (including Additional Amounts) after such withholding or deduction will equal not be less than the amount that such the Holder or beneficial owner would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
to: (a) any payment to a Holder or beneficial owner who is liable for such Taxes that are imposed in respect of such Note (i) by reason of such Holder or withheld solely because beneficial owner, or any other person entitled to payments on the Note, being a person with whom the Issuer or the Company does not deal at arm’s length (within the meaning of the Income Tax Act (Canada) (the “Tax Act”)), (ii) by reason of the existence of any present or former connection between such holder Holder or beneficial owner (or between a fiduciary, settlersettlor, beneficiary, member or member shareholder of, or possessor of power over, such holder Holder or beneficial owner, if such holder Holder or beneficial owner is an estate, trust, partnership, limited liability company or other fiscally transparent entity, corporation) and Canada or a person holding a power over an estate any province or trust administered by a fiduciary holder:
(i) is territory thereof or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (therein other than the mere fact of ownership ownership, or receiving payments under or enforcing any rights in respect of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being Note as a non-resident or having been a citizen deemed non-resident of Canada or resident any province or territory thereof or being treated as being therein, or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is reason of such Holder or was with respect to the United States beneficial owner being a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more “specified shareholder” of the total combined voting power of all classes of stock of Issuer or the Company or not dealing at arm’s length with a “specified shareholder” of the Guarantor;
Issuer or the Company as defined in subsection 18(5) of the Tax Act; (b) any Note presented for payment (where presentation is required) more than 30 days after the later of (i) the date on which such payment first becomes due or (ii) if the full amount of the monies payable has not been paid to the Holders of the Notes on or prior to such date, the date on which the full amount of such monies has been paid to the Holders of the Notes, except to the extent that the Holder of the Notes would have been entitled to such Additional Amounts on presentation of the same for payment on the last day of such period of 30 days; (c) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) tax or any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
similar Tax; (d) any Taxes Tax imposed solely as a result of the failure of such holder a Holder or any other person beneficial owner to comply with applicable certification, informationidentification, documentation declaration or other similar reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction Canada or any province or territory thereof or therein of such holderHolder or beneficial owner, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction by regulation, as a precondition to relief reduction of, or exemption exemption, from such Taxes;
Tax; (e) any (i) withholding or deduction imposed pursuant to Sections 1471 to 1474 of the U.S. Internal Revenue Code of 1986, as amended (“FATCA”), or any successor version thereof, or any similar legislation imposed by any other governmental authority, (ii) Tax or penalty arising from the Holder’s or beneficial owner’s failure to properly comply with the Holder’s or beneficial owner’s obligations imposed under the Canada United States Enhanced Tax Information Exchange Agreement Implementation Act (Canada) or any treaty, law or regulation or other official guidance enacted by Canada implementing FATCA or an intergovernmental agreement with respect to withholding Taxes FATCA or any similar legislation imposed by the United Statesany other governmental authority including, any such Taxes imposed by reason for greater certainty, Part XVIII and Part XIX of the failure of such holder to fulfill the statement requirements of sections 871(h) Tax Act; or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by combination of the Guarantor foregoing clauses (a) to (e). The Issuer or the Company or any paying agent from payments in respect of such Securities;
(gas applicable) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i1) make such withholding or deduction of Taxes and (ii2) remit the full amount of Taxes so deducted or withheld by it to the relevant Taxing Jurisdiction authority in accordance with all applicable lawslaw. The Guarantor Issuer or the Company (as applicable) will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available furnish to the holders Holders of the Offered SecuritiesNotes, within 90 30 days after the date the payment of any Taxes so deducted or withheld by it is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by it. The Issuer and the Guarantor Company will indemnify and hold harmless each Holder and, upon written request, will reimburse each such Holder for the amount of (i) any Taxes (other than any Taxes for which Additional Amounts would not be payable pursuant to clauses (a) through (f) above) levied or ifimposed and paid by such Holder as a result of payments made under or with respect to the Notes which have not been withheld or deducted and remitted by the Issuer or the Company (as applicable) in accordance with applicable law, notwithstanding Guarantor(ii) any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, and (iii) any Taxes (other than any Taxes for which Additional Amounts would not be payable pursuant to clauses (a) through (f) above) imposed with respect to any reimbursement under clause (i) or (ii) above, but excluding any such Taxes on such Holder’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantornet income. At least 30 days prior to each date on which any payment under or with respect to the Guarantees Notes is due and payable, if the Guarantor Issuer will be obligated to pay Additional Amounts with respect to such payment, the Guarantor Issuer will deliver to the Trustee an Officer’s Officers’ Certificate stating the fact that such Additional Amounts will be payable, payable and the amounts so payable and will set forth such other information as is necessary to enable such the Trustee to pay such Additional Amounts to holders of Offered Securities Holders on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees Indenture there is mentioned, in any context, the payment of principal (and premium, if any), redemption priceRedemption Price, Purchase Price, Change of Control Payment, interest or any other amount payable under or with respect to any SecurityNote, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to the provisions of this Section 2.13 and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made (if applicable). The obligations of the Issuer and the Company under this Section 2.13 shall survive the termination of this Indenture and the payment of all amounts under or with respect to the Notes.
Appears in 1 contract
Samples: Fourth Supplemental Indenture (Brookfield Asset Management Inc.)
Payment of Additional Amounts. All payments made (a) The Issuer and the Guarantor shall pay, in respect of any payment of principal of, and any premium and interest on the Notes, to a registered holder or beneficial owner thereof that, in the case of payment by the Guarantor under Issuer, is not a resident of the jurisdiction of incorporation or with respect to residence for tax purposes of the Guarantees will be made free and clear of and without withholding Issuer or deduction for any successor entity, or on account of any present political subdivision or future taxes, duties, levies, imposts, assessments taxing authority thereof or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction therein (the “TaxesIssuer Jurisdiction”), unless or in the case of payment by the Guarantor, is not a resident of the jurisdiction of incorporation or residence for tax purposes of the Guarantor is required to withhold or deduct Taxes by law any successor entity, or by any political subdivision or taxing authority thereof or therein (the interpretation or administration thereof. In “Guarantor Jurisdiction”, and together with the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the GuaranteesIssuer Jurisdiction, the Guarantor will pay “Relevant Jurisdictions”) for purposes of taxation, such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each such registered holder or beneficial owner of Securities a Note, after deduction or withholding for any and all present and future tax, levy, impost or other governmental charge whatsoever imposed, assessed, levied or collected by or for the account of the United States, the United Kingdom or any political subdivision thereof or any authority thereof having the power to tax, or any other Relevant Jurisdiction (including Additional Amounts“Taxes”) after such withholding or deduction will equal not be less than the amount that such Holder holder would have received if such Taxes had not been required to be withheld or deducted; provided provided, however, that no neither the Issuer nor the Guarantor shall be required to pay any Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(ai) any Taxes Any present or future Tax that are imposed would not have been so imposed, assessed, levied or withheld solely because such collected but for the fact that the registered holder of the Note (or a fiduciary, settlersettlor, beneficiary, member or member shareholder of, or possessor of a power over, such holder holder, if such holder is an estate, trust, partnership, limited liability company partnership or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(icorporation) is or was present has been a domiciliary, national or engaged inresident of, or is engaging or was treated as present or having been engaged in, in a trade or business in the Taxing Jurisdiction or has maintaining or had having maintained a permanent establishment or being or having been physically present in the Taxing JurisdictionRelevant Jurisdiction or otherwise having or having had some connection with the Relevant Jurisdiction other than the mere holding or ownership of, or the collection of principal of, and interest on, a Note;
(ii) has or had any Any present or former connection (other than future Tax that would not have been so imposed, assessed, levied or collected but for the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxesthat, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date required in order to receive payment, the Note was presented more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly was provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(diii) any Taxes imposed solely as a result Any estate, inheritance, gift, transfer, personal property or similar Tax;
(iv) Any present or future Tax that is payable otherwise than by deduction or withholding from payments on or in respect of the Note;
(v) Any present or future Tax that would not have been so imposed, assessed, levied or collected but for the failure of such by the registered holder or the beneficial owner of the Note to comply, (following a written request addressed to the registered holders), with any other person to comply with applicable certification, information, documentation identification or other reporting requirements concerning the nationality, residence, residence or identity of such registered holder (or beneficial owner) or its connection with the Taxing Relevant Jurisdiction of such holder, if such compliance is required by statute statute, regulation or regulation administrative practice of the relevant Taxing Jurisdiction Relevant Jurisdiction, as a precondition condition to relief or exemption from such TaxesTax;
(evi) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than Any withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes imposed on a payment to an individual that is required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Union Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amendedsuch Directive;
(ivii) any Any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented on a payment to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate person that is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld made pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code (or of 1986, as amended, and any amended or successor version that is substantively comparable) provisions, and in either case any current or future Treasury regulations promulgated thereunder or and official interpretations thereof. The Guarantor will also thereof (i“FATCA”);
(viii) make Any withholding or deduction that is imposed on the Note that is presented for payment, where presentation is required, by or on behalf of a registered holder who would have been able to avoid such withholding or deduction by presenting the Note to another paying agent; or
(ix) Any combination of the Taxes and described in (iii) remit through (viii) above, nor will Additional Amounts be paid in respect of any payment in respect of the full amount Notes to any registered holder of Taxes so deducted the Notes that is a fiduciary or withheld partnership or any person other than the sole beneficial owner of such payment to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing extent such payment would be required by the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders laws of the Offered Securities, within 90 days after Relevant Jurisdiction to be included in the date the payment income for tax purposes of any Taxes so deducted a beneficiary or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts settlor with respect to such paymentfiduciary or a member of such partnership or a beneficial owner that would not have been entitled to such amounts had such beneficiary, settlor, member or beneficial owner been the Guarantor will deliver registered holder of such Notes. References in these Conditions to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable“principal”, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor “premium” or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention “interest” shall be deemed to include mention of the payment of references to Additional Amounts payable with respect thereto. References to the extent that, in such context, Additional Amounts are, were “Issuer” shall be deemed to include references to any person into or would with which the Issuer merges or consolidates or to which the Issuer transfers or leases its assets substantially as an entity and references to the “Guarantor” shall be payable in respect thereofdeemed to include references to any person into or with which the Guarantor merges or consolidates or to which the Guarantor transfers or leases its assets substantially as an entity.
Appears in 1 contract
Samples: Floating Rate Fiscal and Paying Agency Agreement (Brandbev S.a r.l.)
Payment of Additional Amounts. All payments made by that the Guarantor Issuer makes under or with respect to the Guarantees Notes and that any Guarantor makes under or with respect to any Note Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature Taxes imposed or levied by or on behalf of Canada or any other jurisdiction (i) in which the Issuer or any Guarantor is incorporated, organized or otherwise resident or doing business for tax purposes or (ii) from or through which the Issuer or any Guarantor or their paying agents makes any payment under or with respect to the Notes or any Note Guarantee, or by, in each case, any political subdivision or taxing authority or agency thereof or therein (each, a “Relevant Taxing Jurisdiction (“TaxesJurisdiction”), unless withholding or deduction is then required by law. If the Issuer or any Guarantor or any other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from imposed by a Relevant Taxing Jurisdiction in respect of any payment made under or with respect to the GuaranteesNotes or any Note Guarantee, the Guarantor Issuer or such Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary so to ensure that the net amount received by each holder beneficial owner of Securities (including Additional Amounts) the Notes after such withholding or deduction (including any withholding or deduction attributable to the Additional Amounts) will equal be not less than the amount that such Holder the beneficial owner would have received if such Taxes had not been required to be withheld or deducted; provided that no . Neither the Issuer nor any Guarantor will, however, pay Additional Amounts will be payable with respect to a payment to a holder Holder or beneficial owner of the Offered Securities or a holder of a beneficial interests Notes in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for respect or on account of:
(a) : · any Taxes Tax that are would not have been imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered levied by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Relevant Taxing Jurisdiction;
(ii) has , but for the Holder’s or had any beneficial owner’s present or former connection with such Relevant Taxing Jurisdiction (other than any connection arising solely from the mere fact acquisition, ownership or disposition of ownership the Notes, the receipt of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being payments under or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to such Notes or a Note Guarantee or the exercise or enforcement of rights under or with respect to the Notes or any Note Guarantee); · any Tax imposed by reason of a Holder, beneficial owner or any other recipient of a payment being a Person with whom the Issuer or any Guarantor does not deal at arm’s length for purposes of the Income Tax Act (Canada); · any Tax that is imposed or withheld by reason of the failure of the Holder or beneficial owner of Notes, following the Issuer’s written request addressed to the Holder or beneficial owner (and made at a time that would enable the Holder or beneficial owner acting reasonably to comply with that request, and in all events at least 30 calendar days before the relevant date on which payment under or with respect to the Notes or any Note Guarantee is due and payable) to comply with any certification or identification requirements, whether required or imposed by statute, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the United StatesRelevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction), but in each case only to the extent that the Holder or beneficial owner, as the case may be, is or was with respect legally eligible to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income taxprovide such certification; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) · any estate, inheritance, gift, sales, transfer, excise transfer or personal property Taxes similar Taxes; · any Tax imposed on or with respect to any payment by the SecuritiesIssuer or a Guarantor to the Holder if such Holder is a fiduciary or partnership or person other than the sole beneficial owner of such payment to the extent that Taxes would not have been imposed on such payment had the beneficiary, except as otherwise partner or other beneficial owner directly held the Note, provided herein;
(c) that there is no material cost or material commercial or legal restriction to transferring the Notes to the beneficiary, partner or other beneficial owner and only to the extent such Tax is imposed more than 90 days after the Issuer notifies such Holder of the imposition of such Tax and requests the Holder to make such a transfer; or · any Taxes Tax that is imposed solely as a result or levied by reason of the presentation of such Securities (where presentation is requiredrequired in order to receive payment) of the Notes for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary beneficial owner or holder Holder thereof would have been entitled to the payment of Additional Amounts had the Securities Notes been presented for payment on any date during such 30-30 day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder. The Issuer and each Guarantor, if such compliance is required by statute or regulation of they are the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to applicable withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, howeveragents, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes required by applicable law and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction taxing authority in accordance with all applicable lawslaw. The Guarantor will use its commercially reasonable efforts Where Tax is payable pursuant to obtain certified copies Regulation 803 of tax receipts evidencing the payment Income Tax Act (Canada) by a Holder or beneficial owner of the Notes in respect of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available amount payable under the Notes to the holders Holder (other than by reason of a transfer of the Offered SecuritiesNotes to a person resident in Canada with whom the transferor does not deal at arm’s length for the purposes of such Act), but no Additional Amount is paid in respect of such Tax, the Issuer will pay to the Holder an amount equal to such Tax within 90 45 days after receiving from the date Holder a notice containing reasonable particulars of the payment of any Taxes Tax so deducted payable, provided such Holder or withheld is due pursuant beneficial owner would have been entitled to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence receive Additional Amounts on account of such Tax but for the fact that it is payable otherwise than by deduction or withholding from payments by Guarantormade under or with respect to the Notes. At least 30 calendar days prior to each date on which any payment under or with respect to the Guarantees Notes is due and payable, if the Issuer and any Guarantor will be obligated to pay Additional Amounts with respect to such paymentpayment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it will be promptly thereafter), the Guarantor Issuer will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, payable and the amounts so payable and will set forth such other information as is (other than the identities of Holders and beneficial owners) necessary to enable such the Trustee or paying agent, as the case may be, to pay such Additional Amounts to holders of Offered Securities and beneficial owners on the relevant payment date. The Issuer will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing payment of such Additional Amounts. The Issuer or the relevant Guarantor will take reasonable efforts to furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor, as the case may be, of any Taxes imposed or levied by a Relevant Taxing Jurisdiction. If, notwithstanding the reasonable efforts of the Issuer or such Guarantor to obtain such receipts, the same are not obtainable, then the Issuer or such Guarantor will provide such Holder with other evidence reasonably satisfactory to the Holder of such payment by the Issuer or such Guarantor. In addition, the Issuer and the Guarantors will pay any present or future stamp, issue, registration, court documentation, excise or property Taxes or other similar Taxes imposed by any Relevant Taxing Jurisdiction in respect of any payment under or with respect to the Notes or any Note Guarantee, the execution, issue, delivery or registration of the Notes, any Note Guarantee or the Indenture or any other document or instrument referred to thereunder and any such Taxes imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes, such Note Guarantee or the Indenture or any such other document or instrument following the occurrence of any Event of Default with respect to the Notes. The preceding provisions of this Article II shall will survive any termination of the termination, defeasance or discharge of contained in this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor person to the Guarantor Issuer or any successor Person to the Guarantor is organized organized, incorporated or is engaged in otherwise resident or doing business for tax purposes or any jurisdiction from or through which such person (or its paying agent) makes any payment under or with respect to the Notes or any Note Guarantee, and in each case any political subdivisions subdivision or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentionedIndenture refers to, in any context, the payment of principal and principal, premium, if any, redemption price, interest or any other amount payable under or with respect to the Notes (including payments thereof made pursuant to any SecurityNote Guarantee), such mention shall be deemed to include mention of reference includes the payment of Additional Amounts to the extent thatAmounts, in such context, Additional Amounts are, were or would be payable in respect thereofif applicable.
Appears in 1 contract
Samples: Indenture (Essar Steel Algoma Inc.)
Payment of Additional Amounts. All The Company will make all payments made by of principal of, and premium (if any) and interest on, the Guarantor under or with respect to the Guarantees will be made free and clear Notes of and any series without withholding or deduction for for, or on account of of, any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf within Luxembourg, any jurisdiction in which ArcelorMittal is resident for tax purposes or, in the case of a successor entity, any Taxing Jurisdiction jurisdiction in which such successor entity is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “TaxesRelevant Jurisdiction”), unless the Guarantor such withholding or deduction is required to withhold or deduct Taxes by law or by regulation or governmental policy having the interpretation or administration thereofforce of law. In the event that Guarantor any such withholding or deduction is required to so withhold required, the Company or deduct any successor entity, as the case may be, will make such deduction or withholding, make payment of the amount for or on account of any Taxes from any payment made under or with respect so withheld to the Guarantees, the Guarantor appropriate governmental authority and will pay such additional amounts (“Additional Amounts”) as may be necessary so that will result in the net amount receipt by the Holders of such amounts that would have been received by each holder of Securities (including Additional Amounts) after such Holders had no such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided by the Relevant Jurisdiction, except that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or payable:
(a) for or on account of:
(ai) any Taxes that are imposed or withheld solely because such holder or a fiduciarytax, settlerduty, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company assessment or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holdergovernmental charge that would not have been imposed but for:
(iA) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had existence of any present or former connection (other than between the mere fact of ownership Holder or beneficial owner of such Securities) with Note, as the Taxing case may be, and the Relevant Jurisdiction imposing including, without limitation, such Taxes, including Holder or beneficial owner being or having been a citizen or resident of such Relevant Jurisdiction or treated as a resident thereof or being treated as being or having been physically present or engaged in a resident thereoftrade or business therein or having or having had a permanent establishment therein, other than merely holding such Note or the receipt of payments thereunder;
(iiiB) the presentation of such Note (where presentation is required) more than 30 days after the later of the date on which the payment of the principal of, or premium (if any) or interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for, except to the extent that the Holder thereof would have been entitled to such Additional Amounts if it had presented such Note for payment on any date within such 30-day period;
(C) the failure of the Holder or beneficial owner to comply with respect a timely and reasonable request of the Company or any successor entity addressed to the Holder or beneficial owner, as the case may be, to provide information, documentation and certification concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction, if and to the extent that due and timely compliance with such request would under applicable law, regulation or administrative practice have reduced or eliminated any withholding Taxes imposed by the United States, is or was with respect deduction as to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings which Additional Amounts would have otherwise been payable to avoid United States federal income taxsuch Holder; or
(ivD) owns or owned 10% or more the presentation of such Note (where presentation is required) for payment in the total combined voting power of all classes of stock of the Company or the GuarantorRelevant Jurisdiction, unless such Note could not have been presented for payment elsewhere;
(bii) any estate, inheritance, gift, salessale, transfer, excise or personal property Taxes or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge that is payable other than by deduction or withholding from a payment on or in respect of a Note;
(iv) any tax, assessment or other governmental charge imposed by the Foreign Account Tax Compliance Act pursuant to sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to section 1471(b) of the Code and any intergovernmental agreements (and related legislation or official administrative guidance) implementing the foregoing; or
(v) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (i), (ii), (iii) and (iv); or
(b) with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result payment of the presentation principal of, or premium (if any) or interest on, such Note to a Holder who is a fiduciary, partnership or Person other than the sole beneficial owner of such Securities (where presentation is required) for any payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof such payment would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes be required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income included in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or income under the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder laws of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction Relevant Jurisdiction, for tax purposes, of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, who would not have been entitled to the payment of an such Additional Amount Amounts had the that beneficiary, settlor, partner, or beneficial owner or member received directly its beneficial or distributive share of been the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations Holder thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, mentioned in any context, context the payment of principal of, and premiumany premium or interest on, if any, redemption price, interest or any other amount payable under or with respect to any SecurityNote, such mention shall will be deemed to include mention of the payment of Additional Amounts provided for in the Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. For the avoidance of doubt, in no event shall either of the Trustee or the Securities Administrator have any duty, responsibility or obligation to confirm, verify or otherwise review any calculation or other determination in connection with Additional Amounts or any other possible make-whole premiums, and neither the Trustee nor the Securities Administrator shall have any liability in connection with, related to or arising out of any such calculations or determinations.
Appears in 1 contract
Payment of Additional Amounts. All payments made by the Company or the Guarantor under or with respect to the Guarantees Securities and any Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless the Guarantor Company or Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that the Company or Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Securities or the Guarantees, as the Guarantor case may be, the Company or Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Global Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i1) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii2) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a national citizen or resident thereof or thereof, being treated as being or having been a resident thereofthereof or being or having been physically present therein;
(iii3) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign private foundation or other foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or;
(iv4) actually or constructively owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or Guarantor within the Guarantor;meaning of Section 871(h)(3) of the Code; or
(5) is or was a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3) of the Code.
(b) any estate, inheritance, gift, sales, transfer, excise or excise, personal property or similar Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed or withheld solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute statute, regulation, ruling or regulation administrative practice of the relevant Taxing Jurisdiction or by any applicable tax treaty to which the relevant Taxing Jurisdiction is a party as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Company or a Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 2003, European Council Directive 2014/48 EU of March 14, 2014 or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26 and 27, 2000, on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State member country of the European Union; or;
(j) any withholding or deduction required pursuant to sections 1471 through 1474 of the Code, any regulations or agreements thereunder, official interpretations thereof, or any law, rule, guidance or administrative practice implementing an intergovernmental agreement entered into in connection with such sections of the Code or;
(k) any combination of Section 3.02(a1502(a), (b), (c), (d), (e), (f), (g), (h) and ), (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claimj). Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered a Global Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In additionThe Company or Guarantor, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of as the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor case may be, will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor Company or Guarantor, as applicable, will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor Company or Guarantor, as the case may be, will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company or Guarantor or if, notwithstanding the Company’s or applicable Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by the Company or Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Securities or Guarantees is due and payable, if the Company or a Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company or Guarantor will deliver to the Trustee an Officer’s Officers’ Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. In addition, the Company will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in Luxembourg or the United States or any political subdivision or taxing authority of or in the foregoing in respect of the creation, issue, offering, enforcement, redemption or retirement of the Securities. The provisions of this Article II Fifteen shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Company or a Guarantor or any successor Person to the Guarantor Company or Guarantor, as the case may be, is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Company or Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor Company or applicable Guarantor, as the case may be, shall be substituted for the date on which the Offered series of Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
Appears in 1 contract
Samples: Indenture (DH Europe Finance S.A.)
Payment of Additional Amounts. All payments made by of Principal and interest in respect of the Guarantor under or with respect to the Guarantees will Securities shall be made free and clear of and without withholding or deduction for or on account of any and all present or future taxes, duties, leviesassessments or governmental charges of any nature imposed, impostslevied collected, withheld or assessed by or on behalf of (a) the government of Switzerland or of any political subdivision of Switzerland or by any authority or agency therein or thereof having the power to tax, (b) the government of the jurisdiction of organization of the Company or of any political subdivision or territory or possession of such jurisdiction or by any authority or agency therein or thereof having the power to tax or (c) the government of any jurisdiction from or through which a payment on a Security or Guarantee is made or any political subdivision or territory or possession of such jurisdiction or by any authority or agency therein or thereof having power to tax (each jurisdiction listed in clauses (a), (b) and (c), a Relevant Taxing Jurisdiction and all such taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“collectively, Taxes”), unless except to the Guarantor is extent such Taxes are required to withhold be withheld or deduct Taxes deducted by law or by the interpretation or administration thereof. In If either the event that Company or the Guarantor is so required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with in respect to of the GuaranteesSecurities, the Guarantor will Company or the Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as may be necessary so such that the net amount received by each holder of Securities Holder (including such Additional Amounts) after such withholding or deduction will equal shall not be less than the amount that such Holder would have received if such the Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofTaxes:
(a) that would not have been imposed but for the existence of any Taxes that are imposed present or withheld solely because former connection between such holder Holder or beneficial owner of the Securities (or between a fiduciary, settlersettlor, beneficiary, member or member shareholder of, or possessor of a power over, such holder Holder or beneficial owner, if such holder Holder or beneficial owner is an estate, trust, partnership, limited liability company partnership or other fiscally transparent entity, or corporation) and a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Relevant Taxing Jurisdiction;
, including, without limitation, such Holder or beneficial owner (iior such fiduciary, settlor, beneficiary, member, shareholder or possessor) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as a resident thereof or domiciled thereof or a national thereof or being or having been present or engaged in trade or business therein or having or having had a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantorpermanent establishment therein;
(b) any that are estate, inheritance, gift, sales, transfer, excise personal property, wealth or personal property Taxes imposed with respect to the Securitiessimilar taxes, except as otherwise provided hereinduties, assessments or other governmental charges;
(c) that are payable other than by withholding from payments of Principal of or interest on the Securities;
(d) that would not have been imposed but for the failure of the applicable recipient of such payment to make a declaration of non-residence or other similar claim for exemption to the relevant tax authority or comply with any Taxes imposed solely certification, identification, information, documentation or other reporting requirement to the extent such compliance is required by applicable law or administrative practice or an applicable treaty as a result precondition to exemption from, or reduction in, the rate of deduction or withholding of such Taxes;
(e) that are imposed on a payment to an individual or a residual entity and are required to be made pursuant to (i) the European Council Directive 2003/48/EC (or any amendment thereof) on the taxation of savings income in the form of interest payments (the EU Savings Directive) or the agreement of October 26, 2004 entered into by the EU and Switzerland on the taxation of savings income by way of a withholding tax system and voluntary declaration in the case of transactions between parties in the EU member states and Switzerland (the Agreement), or any law implementing or complying with, or introduced in order to conform to, the EU Savings Directive or the Agreement, or (ii) the Luxembourg law of December 23, 2005 relating to interest payments made or ascribed to or for the benefit of an individual beneficial owner tax resident in Luxembourg (as amended);
(f) that would not have been imposed but for the presentation of such Securities a Security (where presentation is required) for payment on a date more than 30 days after the date on which such payment first became due and payable or the date on which payment thereof is was duly provided for, whichever is occurred later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any to the extent the amount of Taxes required could have been reduced if presentation for payment of the relevant Securities had been made to be withheld by any a paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other than the paying agent;agent to which the presentation was made; or
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State combination of the European Union; or
foregoing clauses (ja) any combination of Section 3.02(a), (b), (c), (d), (e), (f), through (g), (h) and (i). ; nor shall Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date paid with respect to which any payment of the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders Principal of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable interest on any Security to any such Holder who is a fiduciary or the holder of a partnership or a beneficial interest in an Offered Security that owner who is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only payment to the extent that a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of such partnership or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to such Additional Amounts had it been the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share Holder of the paymentSecurity. The Company shall maintain, in respect of Securities of each series outstanding, at least one Paying Agent located outside Switzerland. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version event that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or a Paying Agent with respect to Securities of a particular series is maintained in any member state of the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such paymentEuropean Union, the Guarantor Company shall maintain a Paying Agent in at least one member state that will deliver not be obliged to withhold or deduct taxes pursuant to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofEU Savings Directive.
Appears in 1 contract
Samples: Indenture (Novartis Capital CORP)
Payment of Additional Amounts. All payments made by the Guarantor under Issuer, in respect of the Notes, or with the Guarantor, in respect to of the Guarantees Guarantee, will be made free and clear of and without deduction or withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or other governmental charges of whatever nature imposed (“Taxes”) unless any such deduction or withholding is required by law. If any deduction or withholding for, or on account of, any Taxes is imposed, collected, withheld, assessed or levied by or on behalf of Korea or Canada, or within any Taxing Jurisdiction (“Taxes”), unless the Guarantor is required to withhold or deduct Taxes by law political subdivision thereof or by any authority therein having power to tax, the interpretation Issuer or administration thereof. In the event that Guarantor is required to so Guarantor, as applicable, will withhold or deduct any amount for or on account of any such Taxes from any payment made under or with respect and pay them to the Guaranteesrelevant government authority, and the Guarantor Issuer or the Guarantor, as applicable, will pay such additional amounts in respect of Taxes as will result (i) with respect to the Issuer, in the payment to Holders of the principal of, premium (if any) and interest on the Notes that would otherwise have been receivable by them in respect of payments on such Notes in the absence of such deduction or withholding or (ii) with respect to the Guarantor, the amounts guaranteed under the Guarantee that would otherwise have been receivable by the Holders in respect of payments under the Guarantee in the absence of such deduction or withholding (such additional amounts due by the Issuer or the Guarantor, as applicable, the “Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided ), except that no such Additional Amounts will shall be payable with in respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofNote:
(a) any Taxes that are imposed to or withheld solely because such holder on behalf of a Holder or a fiduciary, settler, beneficiary, or member the beneficial owner of such holder if such holder the Note who is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing subject to such Taxes, including as applicable, in respect of such Note by reason of such Holder or the beneficial owner of the Note being connected with Korea or Canada, as applicable, other than merely by holding or beneficially owning such Note or by the receipt of the principal of, or any premium (if any) or interest on, such Note, or the enforcement of a Note or Guarantee or being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by beneficiary of the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income taxGuarantee; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure on behalf of a Holder or the holder beneficial owner of the Note to the extent that such Holder or beneficial owner of the Note would not be liable for or subject to such deduction or withholding by making a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or deduction to provide a certificate declaring its non-residence, the relevant tax authorities if such Holder or beneficial owner of the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of Note is eligible to make such declaration or other claim or the provision of and, after having been requested to make such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any , such Holder or beneficial owner of the holder Note fails to do so; or
(c) in circumstances where the surrender of a beneficial interest in an Offered Security that Note is required under these Conditions or the Fiscal Agency Agreement, if a fiduciaryNote is surrendered more than 30 days after the Relevant Date, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only except to the extent that a beneficiary the Holder or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, Note would not have been entitled to the payment of an such Additional Amount had on presenting such Note for payment on the beneficiary, settlor, last day of such 30 day period; or
(d) to or on behalf of a Holder or beneficial owner or member received directly its beneficial or distributive share of the Note who is not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) to the Issuer at the time of making such payment. In addition, no Additional Amounts will be paid on account ; or
(e) in the case of any Taxes imposed combination of items (a) through (d) above. For this purpose the “Relevant Date” in relation to any Note means (a) the due date for payment in respect thereof which is a Business Day or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparableb) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit if the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing monies payable on such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the due date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment has not been received by the Guarantor Fiscal Agent or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days principal paying agent on or prior to each date on which any payment under or with respect to the Guarantees is such due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which notice is duly given to the Guarantor changes its jurisdiction in which it is organized Holders or beneficial owners of the Note that such Person becomes a successor to monies have been so received. if: The Issuer and the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of not pay Additional Amounts to the extent that, in such context, Additional Amounts are, were on any Note or would be payable in respect thereof.Guarantee
Appears in 1 contract
Samples: Fiscal Agency Agreement
Payment of Additional Amounts. (a) All payments made by the Guarantor under Company in respect of the Notes or with the Guarantors in respect to of the Note Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, leviesassessments, imposts, assessments or other governmental charges of whatever nature imposed or levied by or on behalf of the Company’s, a Guarantor’s or any successor’s jurisdiction of incorporation or tax residence or the jurisdiction in which central management or control of the Company, such Guarantor or such successor, as applicable, is exercised, or in or through which payments are made in respect of the Notes or the Note Guarantees or, in each case, any political subdivision or governmental authority therein (each a “Relevant Taxing Jurisdiction (“TaxesJurisdiction”), unless the Company, such Guarantor or such successor is required to withhold or deduct Taxes compelled by law to deduct or by the interpretation withhold such taxes, duties, assessments, or administration thereofgovernmental charges. In such event, the event that Guarantor is required to relevant payor will make such deduction or withholding, make payment of the amount so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect withheld to the Guarantees, the Guarantor will appropriate governmental authority and pay such additional amounts (the “Additional Amounts”) as may be necessary so to ensure that the net amount received amounts receivable by each holder holders of Securities (including Additional Amounts) Notes after such withholding or deduction will (including any withholding or deduction in respect of such payment of Additional Amounts) shall equal the amount that such Holder respective amounts of principal and interest (and premium, if any) which would have received if been receivable in respect of the Notes in the absence of such Taxes had not been required to be withheld withholding or deducted; provided that no deduction. No such Additional Amounts will shall be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofpayable:
(a1) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiaryto, or member to a third party on behalf of, a Holder or beneficial owner who is liable for such taxes, duties, assessments or governmental charges in respect of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered Note by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in reason of the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had existence of any present or former connection between such Holder (other than the mere fact of ownership or between a fiduciary, settlor, beneficiary, member or shareholder of such SecuritiesHolder, if such Holder is an estate, a trust, a partnership, a limited liability company or a corporation) with or beneficial owner and the Relevant Taxing Jurisdiction imposing Jurisdiction, including, without limitation, such TaxesHolder (or such fiduciary, including settlor, beneficiary, member or shareholder) or beneficial owner being or having been a citizen or resident thereof or being treated or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein, other than the mere holding of the Note or enforcement of rights and the receipt of payments with respect to the Note;
(2) in respect of Notes surrendered (if surrender is required) more than 30 days after the Relevant Date except to the extent that payments under such Note would have been subject to withholding and the Holder or beneficial owner of such Note would have been entitled to such Additional Amounts, on surrender of such Note for payment on the last day of such period of 30 days;
(3) to, or to a third party on behalf of, a Holder or beneficial owner who is liable for such taxes, duties, assessments or other governmental charges by reason of such Holder’s or beneficial owner’s failure to comply with any certification, identification or other reporting requirement concerning the nationality, residence or identity of such Holder or beneficial owner or its connection with a Relevant Taxing Jurisdiction, if (a) compliance is required by such jurisdiction, or any political subdivision or authority thereof or therein having power to tax, as a precondition to exemption from, or reduction in the rate of, the tax, duty, assessment or other governmental charge and (b) the Company or any Guarantor has given the Holders at least 30 days’ notice that Holders will be required to provide such certification or identification or comply with such other requirement;
(4) in respect of any estate, inheritance, gift, sales, transfer, excise or personal property or similar tax, assessment or governmental charge;
(5) in respect of any tax, assessment or other governmental charge which is payable other than by deduction or withholding from payments of principal of, premium, if any, or interest on the Note or by direct payment by the Company or any Guarantor in respect of claims made against the Company or any Guarantor;
(6) in respect of United States federal withholding tax imposed by reason of a Holder or beneficial owner of a Note (i) being or having been a resident thereof;
bank, including any entity regulated as a bank or conducting a banking business, receiving payments on an extension of credit in the ordinary course of its lending business, (iiiii) with respect to any withholding Taxes imposed by the United States, is being or was with respect to the United States a personal holding company, a passive foreign investment company, having been a controlled foreign corporationcorporation for U.S. federal income tax purposes related, directly or indirectly, to the Company through stock ownership or a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States U.S. federal income tax; or
(iviii) owns being or owned having been an actual or constructive owner of 10% or more of the total combined voting power of all classes of stock entitled to vote of the Company or (iv) failing to provide an applicable IRS Form W-8 certifying as to such Person’s non-U.S. status;
(7) in respect of any tax, assessment, withholding or deduction required by Sections 1471 through 1474 of the Guarantor;Code (“FATCA”), any current or future Treasury regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction pursuant to the implementation of FATCA, or any agreement with the United States Internal Revenue Service pursuant to the implementation of FATCA; or
(8) in respect of any combination of the above.
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed No Additional Amounts shall be paid with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except Note to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that who is a fiduciary, a partnership, a limited liability company or other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only that payment to the extent that payment would be required by the laws of the Relevant Taxing Jurisdiction, or any political subdivision thereof, to be included in the income, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, an interest holder in the limited liability company or other fiscally transparent entity, a beneficial owner who would not have been entitled to the payment of an Additional Amount Amounts had the that beneficiary, settlor, member, interest holder or beneficial owner been the Holder. The Company or member received directly its beneficial or distributive share applicable Guarantor, as the case may be, will provide the Trustee and Paying Agent with the official acknowledgement of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially (or, if such acknowledgement is not available, other reasonable efforts to obtain certified copies of tax receipts documentation) evidencing the payment of any Taxes so deducted taxes, duties, assessments or withheld from each Taxing Authority imposing other governmental charges in respect of which the Company or such TaxesGuarantor, as the case may be, has paid any Additional Amounts. The Guarantor willCopies of such documentation will be provided to the Holders of the Notes, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. .
(c) At least 30 days prior to each date on which any payment under or with respect to the Guarantees Notes is due and payablepayable (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Guarantor Company or applicable Guarantor, as the case may be, will be obligated to pay Additional Amounts with respect to such payment, the Guarantor Company will deliver to the Trustee and Paying Agent an Officer’s Certificate stating the fact that such Additional Amounts will be payable, payable and the amounts so payable and will set forth such other information as is necessary to enable such Trustee the Paying Agent to pay remit such Additional Amounts to holders Holders of Offered Securities Notes on the payment date. Each such Officer’s Certificate shall be relied upon until receipt of a new Officer’s Certificate addressing such matters.
(d) The provisions of this Article II shall survive Company will pay any termination stamp, issue, excise, property, registration, documentary or other similar taxes and duties, including interest and penalties, imposed by a Relevant Taxing Jurisdiction in respect of the discharge creation, issue, delivery, registration and offering of the Notes or the execution of the Notes, the Note Guarantees or this Indenture Indenture. The Company will also pay and shall apply mutatis mutandis to indemnify each of the Trustee, the Paying Agent and the Holders and beneficial owners of the Notes from and against all court taxes or other taxes and duties, including interest and penalties, paid by any of them in any jurisdiction in which connection with any action permitted to be taken by the Guarantor or any successor Person Holders and beneficial owners to enforce the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, Company’s obligations under the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever Notes.
(e) Any reference in this Indenture, the Securities Indenture or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption priceNotes to principal, interest or any other amount payable under in respect of the Notes by the Company or the Note Guarantees by any Guarantor will be deemed also to refer to any Additional Amount, unless the context requires otherwise, that may be payable with respect to any Security, such mention that amount under the obligations referred to in this Section 4.18.
(f) The obligations of this Section 4.18 shall be deemed to include mention survive the termination or discharge of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthis Indenture.
Appears in 1 contract
Payment of Additional Amounts. All payments made by the Guarantor under or with respect to the Guarantees will of principal, premium, if any, and interest on Securities of any series shall be made without set-off, counterclaim, fees, liabilities or similar deductions, and free and clear of of, and without deduction or withholding for, taxes, levies, imposts, duties, charges or fees of whatsoever nature now or hereafter imposed, levied, collected, deducted, withheld or assessed by or on behalf of the Commonwealth of Puerto Rico or any political subdivision or taxing authority thereof or therein ("Taxes"). If the Company or any agent thereof is required by law or regulation to make any deduction or withholding for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless the Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Guarantees, the Guarantor will Company shall pay such additional amounts (“"Additional Amounts”") as may shall be necessary so in order that the net amount amounts received by each holder the Holders of the Securities (including Additional Amounts) of any series or the holders or beneficial owners of any interest therein or rights in respect thereof after such deduction or withholding or deduction will shall equal the amount that such Holder would have received if been receivable thereunder in the absence of such Taxes had not been required to be withheld deduction or deducted; provided withholding, except that no such Additional Amounts will shall be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofpayable:
(a) to any Taxes that are imposed Holder of a Security or withheld solely because any interest therein or rights in respect thereof where such holder deduction or a fiduciary, settler, beneficiary, or member withholding is required by reason of such holder if such holder is an estate, trust, partnership, limited liability company Holder having some connection with the Commonwealth of Puerto Rico or other fiscally transparent entity, any political subdivision or a person holding a power over an estate taxing authority thereof or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (thereon other than the mere fact holding of ownership a payment in respect of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantorsecurity;
(b) in respect of any estate, inheritance, gift, sales, transfer, excise deduction or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of withholding that would not have been required but for the presentation by the Holder of such Securities (where presentation is required) a Security for payment on a date more than 30 days after the date on which such payment became due and payable Date of Maturity or the date on which payment thereof is duly provided for, whichever is occurs later, except to the extent ; or
(c) in respect of any deduction or withholding that the beneficiary or holder thereof would not have been entitled to the payment of Additional Amounts had the Securities been presented required but for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable any certification, information, documentation identification or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction Commonwealth of such holderPuerto Rico, or any political subdivision or taxing authority thereof or therein, of the Holder of a Security or any interest therein or rights in respect thereof, if such compliance is required by statute the Commonwealth of Puerto Rico, or regulation of the relevant Taxing Jurisdiction any political subdivision or taxing authority thereof or therein, as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) deduction or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income withholding. Any reference in the form of Indenture to principal or interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed also to include mention of the payment of refer to any Additional Amounts to the extent that, in such context, Additional Amounts are, were or would that may be payable in respect thereofunder this Section 1010.
Appears in 1 contract
Payment of Additional Amounts. All payments made by the Company or the Guarantor under or with respect to the Guarantees Securities and the Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless the Guarantor Company or the Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that the Company or the Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the GuaranteesSecurities or the Guarantee, as the case may be, the Guarantor Company or the Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Global Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder (or the beneficial owner for whose benefit such holder holds such Securities) or a fiduciary, settlersettlor, beneficiary, member, shareholder or member other equity owner of, or possessor of a power over, such holder (or beneficial owner) if such holder (or beneficial owner) is an estate, trust, partnership, limited liability company company, corporation or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction (in each case, other than the mere fact of ownership of such Securities, without another presence or business in such Taxing Jurisdiction);
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a national citizen or resident thereof or thereof, being treated as being or having been a resident thereofthereof or being or having been physically present therein;
(iii) with respect (in relation to any withholding Taxes imposed payments by the United States, Guarantor only) is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign private foundation or other foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) (in relation to payments by the Guarantor only) actually or constructively owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or Guarantor within the Guarantormeaning of Section 871(h)(3) of the Code;
(b) Taxes imposed on any holder that is not the sole beneficial owner of the Securities, or a portion thereof, or that is a fiduciary or partnership, but only to the extent that a beneficiary or settlor with respect to the fiduciary, a beneficial owner or member of the partnership would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner, or member received directly its beneficial or distributive share of the payment;
(c) any estate, inheritance, gift, sales, transfer, excise or excise, personal property or similar Taxes imposed with respect to the Securities, except as otherwise provided herein;
(cd) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(de) any Taxes imposed or withheld solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, or identity of such holder or connection with the any Taxing Jurisdiction of by such holder, if such compliance is required by statute statute, regulation, ruling or regulation administrative practice of the relevant Taxing Jurisdiction or by any applicable tax treaty to which the relevant Taxing Jurisdiction is a party as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor Company or the Company Guarantor or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes withholding or deduction required to be deducted or withheld pursuant to sections 1471 through 1474 of the European Council Directive 2003/48/EC of June 3Code, 2003 on the taxation of savings income in the form of interest paymentsany regulations or agreements thereunder, official interpretations thereof, any intergovernmental agreement, or any amendment thereoflaw, rule, guidance or any law administrative practice implementing or complying with, or introduced an intergovernmental agreement entered into in order to conform to, that Directive or connection with such sections of the Luxembourg Law of December 23, 2005, as amended;Code; or
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a13.2(a), (b), (c), (d), (e), (f), (g), ) or (h) and (i). Additional Amounts will not be payable to or for the account of any Holder The Company or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered SecurityGuarantor, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor Company or the Guarantor, as applicable, will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority taxing authority imposing such Taxes. The Guarantor Company or the Guarantor, as the case may be, will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company or the Guarantor or if, notwithstanding the Company’s or the Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by the Company or the Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees Securities or the Guarantee is due and payable, if the Company or the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company or the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, payable and the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. In addition, the Company will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in the United Kingdom or the United States or any political subdivision or taxing authority of or in the foregoing in respect of the creation, issue, offering, enforcement, redemption or retirement of the Securities. The provisions of this Article II XIII shall survive any termination of or the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Company or the Guarantor or any successor Person person to the Guarantor Company or the Guarantor, as the case may be, is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Company or the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor Company or the Guarantor, as the case may be, shall be substituted for the date on which the Offered Series of Securities was issued. Whenever in this Indenture, the Securities or the Guarantees Guarantee there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 1 contract
Payment of Additional Amounts. All payments made by (a) The Issuer shall pay or cause to be paid to any Holder so entitled all additional amounts (“Additional Amounts”) that may be necessary so that every Net Payment of interest, principal, premium or other amount on that Note will not be less than the Guarantor under or with respect amount provided for in that Note. “Net Payment” refers to the Guarantees will be made free and clear of and without amount the Issuer or any paying agent pays the Holder after deducting or withholding or deduction an amount for or on account of any present or future taxestax, dutiesassessment or other governmental charge imposed with respect to that payment by a taxing authority (including any withholding or deduction attributable to Additional Amounts payable pursuant to this Section 4.12).
(b) The Issuer shall also indemnify and reimburse Holders for:
(1) taxes (including any interest, levies, imposts, assessments or governmental charges of whatever nature penalties and related expenses) imposed or levied on the holders by or on behalf of any Taxing a Relevant Tax Jurisdiction (“Taxes”), unless if and to the Guarantor is same extent that a Holder would have been entitled to receive Additional Amounts if the Issuer had been required to deduct or withhold those taxes from payments on the Notes; and
(2) stamp, court, documentary or deduct Taxes similar taxes or charges (including any interest, penalties and related expenses) imposed by law a Relevant Tax Jurisdiction in connection with the Notes or by the interpretation execution, delivery, enforcement, registration of the Notes, or administration thereof. In payment under or with respect to other related documents and obligations.
(c) Notwithstanding clauses (a) and (b) of this Section 4.12, the event that Guarantor is required Issuer shall not pay Additional Amounts to so withhold or deduct any amount Holder for or on account of any Taxes from any payment made under or with respect to the Guarantees, the Guarantor will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account offollowing:
(a1) any Taxes that are tax, assessment or other governmental charge imposed or withheld solely because such holder at any time there is or was a connection between the Holder (or between a fiduciary, settlersettlor, beneficiary, partner, member or member shareholder of such holder or possessor of power over the relevant Holder if such holder the Holder is an estate, nominee, trust, partnership, limited liability company or other fiscally transparent entitycompany, or a person holding a power over an estate or trust administered by a fiduciary holder:
(icorporation) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in and the Taxing Jurisdiction or has or had a permanent establishment in jurisdiction imposing the Taxing Jurisdiction;
(ii) has or had any present or former connection tax (other than the mere fact receipt of ownership a payment or the acquisition, ownership, disposition or holding of, or enforcement of such Securities) with the Taxing Jurisdiction imposing such Taxesrights under, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereofNote);
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b2) any estate, inheritance, giftgift or any similar tax, salesassessment or other governmental charge;
(3) any tax, transferassessment or other governmental charge imposed solely because the Holder (or if the Holder is not the beneficial owner, excise the beneficial owner) that is legally able to do so fails to comply with any certification, identification or personal property Taxes imposed other reporting requirement concerning the nationality, residence, identity or connection with the taxing jurisdiction of the Holder or any beneficial owner of the Note, if (i) compliance is required by law as a precondition to exemption from the tax, assessment or other governmental charge, (ii) the Issuer has given the Holders at least 60 days’ notice that Holders will be required to provide such information and identification and (iii) the information required on such certification, identification or other reporting requirement is not materially more onerous than the information required to be provided on any of Internal Revenue Service Forms W-8 or Form W-9, or any successor form thereto;
(4) any tax, assessment or other governmental charge with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) Note presented for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided forfor and notice thereof given to Holders, whichever is occurs later, except to the extent that the beneficiary or holder thereof Holder of the Note would have been entitled to the payment of Additional Amounts had on presenting the Securities been presented Note for payment on any date during such the 30-day period;; and
(d5) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor imposed on a payment to an individual or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes residual entity that is required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law laws of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State . The obligations of the European Union; or
(j) Issuer under this Section 4.12 will survive any combination of Section 3.02(a)termination, (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to legal or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction covenant defeasance in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions terms of this Article II shall survive any termination of the Indenture or satisfaction and discharge of this Indenture and shall will apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor Issuer and to any jurisdiction in which such successor is organized organized, doing business or is engaged in business otherwise resident for tax purposes or any political subdivisions jurisdiction from or taxing authority through which payment is made by such successor or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issuedrespective agents. Whenever in this Indenture, the Securities or the Guarantees there is mentionedIndenture refers to, in any context, the payment of principal and principal, premium, if any, redemption price, interest or any other amount payable under or with respect to any SecurityNote, such mention shall be deemed to include mention of reference includes the payment of Additional Amounts or indemnification payments as described hereunder, if applicable. The Trustee shall have no obligation to confirm whether Additional Amounts are owed to the extent that, in such context, Holders or to calculate the payment of Additional Amounts are, were or would be payable in respect thereofhereunder.
Appears in 1 contract
Samples: Indenture (Dana Inc)
Payment of Additional Amounts. (a) All payments made by the Guarantor under or on all Securities and, with respect to any series of Securities to which the Guarantees will provisions of Article Fifteen shall apply, the Guarantee by the Company, the Guarantor, or a paying agent, as the case may be, shall be made free and clear of and without withholding or deduction for or on account of any present or future taxesincome, dutiesstamp or other tax, leviesduty, impostslevy, assessments impost, assessment or other governmental charges charge of whatever a similar nature imposed or levied by or on behalf of any Taxing Jurisdiction (collectively, “Taxes”), unless the Guarantor Company, the Guarantor, or a paying agent, as applicable, is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof. In If the event that Company, the Guarantor or a paying agent, as applicable, is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or in respect of the Securities or, with respect to the Guaranteesany series of Securities to which provisions of Article Fifteen shall apply, the Guarantor will Guarantee levied by or on behalf of a Relevant Taxing Jurisdiction, the Company or the Guarantor, as applicable, shall pay such additional amounts (“Additional Amounts”) as may be necessary so such that the net amount received by each holder of Securities Holder (including such Additional Amounts) ), after such withholding or deduction will equal deduction, shall not be less than the amount that such Holder would have received if such the Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofTaxes:
(a1) that would not have been imposed but for the existence of any Taxes that are imposed present or withheld solely because former connection between such holder Holder or beneficial owner of the Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (or between a fiduciary, settlersettlor, beneficiary, member or member shareholder of, or possessor of a power over, such holder Holder or beneficial owner, if such holder Holder or beneficial owner is an estate, trust, partnershippartnership or corporation), limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the and such Relevant Taxing Jurisdiction;
, including, without limitation, such Holder or beneficial owner (iior such fiduciary, settlor, beneficiary, member, shareholder or possessor) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as a resident thereof or domiciled thereof or a national thereof or being or having been present or engaged in trade or business therein or having or having had a resident thereofpermanent establishment therein;
(iii2) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any are estate, inheritance, gift, sales, value added, transfer, excise personal property, wealth or personal property Taxes imposed similar taxes, duties, assessments or other governmental charges;
(3) payable other than by withholding from payments of principal of and premium, if any, or interest, if any, on the Securities or, with respect to any series of Securities to which the Securitiesprovisions of Article Fifteen shall apply, except as otherwise provided hereinthe Guarantee;
(c4) that would not have been imposed but for the failure of the applicable recipient of such payment (or the beneficial owner of the applicable Security) to comply with any Taxes imposed solely certification, identification, information, documentation or other reporting requirement to the extent:
(i) such compliance is required by applicable law or administrative practice or an applicable treaty as a result precondition to exemption from, or reduction in, the rate of deduction or withholding of such Taxes; and
(ii) at least thirty (30) days before the first payment date with respect to which such Additional Amounts or Taxes shall be payable, the Company or the Guarantor, as the case may be, shall have notified such recipient in writing that such recipient shall be required to comply with such requirement;
(5) that would not have been imposed but for the presentation of such a Security or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (where presentation is required) for payment on a date more than 30 thirty (30) days after the date on which such payment became due and payable or the date on which payment thereof is was duly provided for, whichever is occurred later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d6) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), as of the issue date of the Securities (or any amended or successor version that is substantively comparable) and of such sections), any current or future regulations promulgated thereunder or thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement with respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code (any such taxes, “FATCA Taxes”), and any amounts to be paid on Securities by or on behalf of the Company will be paid net of any FATCA Taxes imposed or required pursuant thereto;
(7) that would not have been imposed if presentation for payment of the relevant Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee (where presentation is required) had been made to a paying agent other than the paying agent to which the presentation was made;
(8) in the case of U.S. dollar-denominated Securities issued by the Company, any taxes imposed by the United States or any political subdivision thereof or tax authority therein, including any U.S. withholding and backup withholding taxes; or
(9) any combination of the foregoing clauses (1) through (8); nor shall Additional Amounts be paid with respect to any payment of principal of or premium, if any, or interest, if any, on any Securities or, with respect to any series of Securities to which the provisions of Article Fifteen shall apply, the Guarantee, to any such Holder or beneficial owner who is a fiduciary or a partnership or a beneficial owner who is other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such Additional Amounts had it been the Holder of the Security. For the avoidance of doubt, no additional amounts shall be payable in respect of any Taxes imposed by any jurisdiction other than a Relevant Taxing Jurisdiction.
(b) If the Company, the Guarantor, or a paying agent, as the case may be, becomes aware that it shall be obligated to pay Additional Amounts pursuant to this Section 4.05 with respect to any payment under or with respect to the Securities of such series or the Guarantee, the Company, the Guarantor, or the applicable paying agent, as the case may be, shall deliver to the Trustee on a date that is at least thirty (30) days prior to the date of that payment (unless the obligation to pay such Additional Amounts arises after the 30th day prior to that payment date, in which case the Company, the Guarantor, or the applicable paying agent shall notify the Trustee promptly thereafter) an Officer’s Certificate of the Company or the Guarantor, as the case may be, stating the fact that such Additional Amounts shall be payable pursuant to this Section 4.05 and the amount estimated to be so payable. Such Officer’s Certificate must also set forth any other information reasonably necessary to enable the paying agents to pay such Additional Amounts to Holders on the relevant payment date. The Guarantor will also Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Company, the Guarantor, or the applicable paying agent, as the case may be, shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts.
(ic) Each of the Company, the Guarantor, or the applicable paying agent, as the case may be, shall make such withholding or deduction all withholdings and deductions required by law of Taxes it and (ii) shall remit the full amount of Taxes so deducted or withheld to the relevant Relevant Taxing Jurisdiction in accordance with all applicable lawslaw with respect to payments in respect of the Securities or Guarantees, as the case may be. The Guarantor will use its commercially reasonable efforts Upon request, the Company, the Guarantor, or the applicable paying agent, as the case may be, shall provide to obtain certified copies of tax the Trustee an official receipt or, if official receipts are not obtainable, other documentation reasonably satisfactory to the Trustee evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxeswithheld. The Guarantor will, upon Upon request, make copies of those receipts or other documentation, as the case may be, shall be made available by the Trustee to the holders Holders of the Offered such Securities.
(d) All references in this Indenture, within 90 days after the date other than in Articles Twelve or Thirteen, to the payment of the principal of or premium, if any, or interest, if any, on or the net proceeds received on the sale or exchange of, any Taxes so deducted Securities or withheld is due pursuant to applicable lawas applicable, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and Guarantee, shall be deemed to include Additional Amounts to the extent that, in that context, Additional Amounts are, were or would be payable.
(e) The obligations of the Company and, if with respect to any series of Securities to which the Guarantor will be obligated provisions of Article Fifteen shall apply, the Guarantor, to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable if and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II when due shall survive any the termination of the discharge of this Indenture and the payment of all other amounts in respect of the Securities and any transfer by a Holder or beneficial owner of its Securities of such series and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor Company, the Guarantor, or the applicable paying agent, as the case may be, is organized incorporated or is engaged in business resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Guarantees and any department or political subdivisions or taxing authority or agency subdivision thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 1 contract
Payment of Additional Amounts. All (a) The Issuer shall make all payments made by in respect of the Guarantor under or with respect to the Guarantees will be made Notes free and clear of of, and without withholding or deduction for or on account of of, any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or on behalf within Bermuda or by or within any political subdivision thereof or any authority therein or thereof having power to tax or any other jurisdiction through which payments are made in respect of any Taxing Jurisdiction the Notes (“Taxes”), unless the Guarantor such withholding or deduction is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under such withholding or with respect to the Guaranteesdeduction of Taxes, the Guarantor Issuer will pay to Holders such additional amounts (“Additional Amounts”) as may be necessary so that will result in the receipt by each Holder of the net amount received that would otherwise have been receivable by each holder such Holder in the absence of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided deduction, except that no such Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofpayable:
(ai) in respect of any Taxes that are imposed would not have been so withheld or withheld solely because such holder deducted but for the existence of any present or former connection including, without limitation, a fiduciarypermanent establishment in Bermuda or between the Holder, settler, beneficiary, applicable recipient of payment or member beneficial owner of the Note or any payment in respect of such holder Note (or, if such holder the Holder or beneficial owner is an estate, nominee, trust, partnership, limited liability company corporation or other fiscally transparent business entity, between a fiduciary, settlor, beneficiary, member or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged inshareholder of, or is possessor of power over, the Holder, applicable recipient of a payment or was treated as present beneficial owner) and an authority with the power to levy or engaged inotherwise impose or assess a Tax, a trade other than the mere receipt of such payment or business in the Taxing Jurisdiction mere holding or has ownership of such Note or had a permanent establishment in beneficial interest or the Taxing Jurisdictionenforcement of rights thereunder;
(ii) has or had any present or former connection (other than the mere fact in respect of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of that would not have been so withheld or deducted if the presentation of such Securities (where presentation is required) Note had been presented for payment on a date more than within 30 days after the date on which such payment became due and payable or Relevant Date to the date on which payment thereof extent presentation is duly provided for, whichever is later, required (except to the extent that the beneficiary or holder thereof Holder would have been entitled to the payment of Additional Amounts had the Securities Note been presented for payment on any date during the last day of such 30-day period);
(diii) in respect of any Taxes imposed solely as a result that would not have been so withheld or deducted but for the failure by the Holder or the beneficial owner of the failure Note or any payment in respect of such holder Note to (i) make a customary declaration of non-residence, or any other person claim or filing for exemption, to which it is entitled or (ii) comply with applicable any customary certification, identification, information, documentation or other reporting requirements requirement concerning the its nationality, residence, identity or connection with the Taxing Jurisdiction of Bermuda or with any jurisdiction through which payments are made; provided that such holder, if such declaration or compliance is was required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from all or part of such TaxesTaxes and the Issuer has given the Holders at least 30 days prior notice that they will be required to comply with such requirements;
(eiv) with in respect to withholding Taxes imposed by the United Statesof any estate, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) inheritance, gift, value added, sales, use, excise, transfer, personal property or 881(c) of the Codesimilar taxes, duties, assessments or other governmental charges;
(fv) in respect of any Taxes that are payable otherwise than by any method other than deduction or withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securitieson the Notes;
(gvi) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities taxes that would not have been so imposed if such the Holder had presented the Note for payment can be made without such withholding by at least one other (where presentation is required) to another paying agent;
(hvii) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account respect of any payment to a Holder or the holder of a beneficial interest in Note that is a fiduciary or partnership (including an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were entity treated as a domestic corporation under United States federal income partnership for tax and if (xpurposes) or any Person other than the making sole beneficial owner of such declaration payment or claim or the provision of such certificate is required or imposed by statuteNote, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the such fiduciary, a member of such partnership or a the beneficial owner of such payment or member of the partnership, limited liability company or other fiscally transparent entity, Note would not have been entitled to the payment of an Additional Amount Amounts had the such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note; or
(viii) in respect of any combination of paragraphs (i) through (vii) above. Notwithstanding the foregoing, none of Issuer, a Guarantor, any paying agent or member received directly its beneficial or distributive share of the payment. In addition, no any other person shall be required to pay any Additional Amounts will be paid with respect to any withholding or deduction imposed on account or in respect of any Taxes imposed or withheld note pursuant to Sections 1471 through to 1474 of the Code (“FATCA”), any treaty, law, regulation or other official guidance enacted by any jurisdiction implementing FATCA or an intergovernmental agreement with respect to FATCA or any amended similar legislation imposed by any other governmental authority, or successor version that is substantively comparableany agreement between Issuer and the United States or any authority thereof implementing FATCA. Notwithstanding the foregoing, the limitations on the Issuer’s obligations to pay Additional Amounts set forth in paragraph (iii) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit not apply if the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment provision of any Taxes so deducted certification, identification, information, documentation or withheld from each Taxing Authority imposing other reporting requirement described in such Taxes. The Guarantor willparagraph (iii) would be materially more onerous, upon requestin form, make available in procedure or in the substance of information disclosed, to the holders a Holder or beneficial owner of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted a Note than comparable information or withheld is due pursuant to applicable other reporting requirements imposed under U.S. tax law, certified copies of tax receipts evidencing regulations and administrative practice (such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior as IRS Forms W-8BEN and W-9).
(b) Prior to each date on which any payment under or with respect to the Guarantees Notes is due and payable (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it will be as soon as reasonably practicable thereafter), if the Guarantor Issuer will be obligated to pay Additional Amounts with respect to such payment, the Guarantor Issuer will deliver to the Trustee an Officer’s Officers’ Certificate stating the fact that such Additional Amounts will be payable, payable and the amounts so payable and will set setting forth such other information as is necessary to enable such the Trustee to pay such Additional Amounts to the holders of Offered Securities such notes on the payment date.
(c) The Trustee may withhold taxes, to the extent it reasonably believes it is required to do so under applicable law, including, without limitation, any withholding or deduction related to FATCA. The provisions of this Article II Issuer shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person furnish to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor Trustee documentation reasonably satisfactory to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the Trustee evidencing payment of principal and premiumany taxes so deducted or withheld. Copies of such documentation will be made available by the Trustee to Holders upon written request to the Trustee.
(d) The Issuer shall promptly pay when due any present or future stamp, if any, redemption price, interest court or similar documentary taxes or any other amount payable under excise or with respect property taxes, charges or similar levies that arise in any jurisdiction from the execution, delivery or registration of each Note or any other document or instrument referred to herein or therein, excluding any Securitysuch taxes, such mention shall be deemed to include mention charges or similar levies imposed by any jurisdiction outside of the payment of Additional Amounts to the extent thatBermuda and except, in such contextcertain cases, Additional Amounts arefor taxes, were charges or would be payable in respect thereofsimilar levies resulting from certain registration of transfer or exchange of Notes.
Appears in 1 contract
Samples: Indenture (GeoPark LTD)
Payment of Additional Amounts. All Unless otherwise required by law, an Issuer will not deduct or withhold from payments made by the such Issuer or a Guarantor under or with respect to the Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless the Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor an Issuer is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Securities or the Guarantees, the Guarantor such Issuer will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided provided, that no Additional Amounts will not be payable with respect to a payment made to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settlersettlor, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person Person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;; or
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company an Issuer or the a Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (Securities, where presentation is required) , for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the such Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person Person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the an Issuer or a Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;; and
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a14.02(a), (b), (c), (d), (e), (f), and (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder of Securities or the holder of a beneficial interest in an Offered Security such Securities if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a such Holder or the holder of a beneficial interest in an Offered Security such Securities to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company each Issuer were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority taxing authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which each Issuer or the Guarantor shall apply this paragraph, each Issuer or the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered a Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees Securities of a series is due and payable, if the an Issuer or Guarantor will be obligated to pay Additional Amounts with respect to such payment, the such Issuer or Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such the Trustee to pay such Additional Amounts to holders of Offered such Securities on the payment date. The provisions of this Article II XIV shall survive any termination of or the discharge of this an Indenture and shall apply mutatis mutandis to any jurisdiction in which the an Issuer or Guarantor or any successor Person to the Guarantor such Issuer is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees Guarantees, there is mentioned, in any context, the payment of principal and principal, premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 1 contract
Samples: Indenture (ADT Inc.)
Payment of Additional Amounts. All 4.1 The Issuer will make payments made by of, or in respect of, principal, premium (if any) and interest on the Guarantor under or with respect to the Guarantees will be made free and clear of and Notes without withholding or deduction for or on account of any present or future taxestax, dutieslevy, leviesimpost or other governmental charge whatsoever and wherever imposed, impostsassessed, assessments levied or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction collected (“Taxes”), unless such withholding or deduction is required by law. If the Issuer, if applicable, or any Guarantor is required to deduct or withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct any amount in respect of Taxes for or on the account of the United Kingdom or, if and only if the Issuer or any Taxes from Guarantor has consolidated, merged, amalgamated or combined with, or transferred or leased its assets substantially as an entirety to, any payment made under or with respect person and as a consequence thereof such person becomes the successor obligor to the GuaranteesIssuer or such Guarantor (and references herein to the Issuer or any Guarantor shall include any such successor obligor) in respect of payments on the Notes, for the account of the jurisdiction under the laws of which the successor person in relation to the relevant payment is organized or resident for tax purposes (or any political subdivision thereof or any authority therein or thereof having the power to tax) (each, a Relevant Taxing Jurisdiction), the Guarantor Issuer or, if applicable, such Guarantor, as the case may be, will pay to a holder of a Note such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each such holder of Securities (including Additional Amounts) after such withholding or deduction will equal not be less than the amount that such Holder holder would have received if such Taxes had not been required to be withheld or deducted; provided provided, however, that no the Issuer and the Guarantors shall not be required to pay any Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Any Taxes that are imposed would not have been so imposed, assessed, levied or withheld solely because such collected but for the fact that the holder or beneficial owner of the Note (or a fiduciary, settlersettlor, beneficiary, member or member shareholder of, or possessor of a power over, such holder holder, if such holder is an estate, trust, partnership, limited liability company partnership or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(icorporation) is or was present has been a domiciliary, national or engaged inresident of, or is engaging or was treated as present or having been engaged in, in a trade or business in the or maintaining or having maintained a permanent establishment or being or having been physically present in, a Relevant Taxing Jurisdiction or has otherwise having or having had some connection with a permanent establishment in the Relevant Taxing Jurisdiction;
(ii) has or had any present or former connection (Jurisdiction other than the mere fact holding or ownership of, or the collection of ownership of such Securitiesprincipal of, and premium (if any) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding companyinterest on, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the GuarantorNote;
(b) any estateAny Taxes that would not have been so imposed, inheritanceassessed, giftlevied or collected but for the fact that, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date required in order to receive payment, the Note was presented more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly was provided for, whichever is later, except to the extent that the beneficiary holder or holder beneficial owner thereof would have been entitled to the payment of Additional Amounts had the Securities Note been presented for payment on any date day during such 30-day period;
(c) Any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(d) any Any Taxes imposed solely as a result that are payable otherwise than by deduction or withholding from payments on or in respect of the applicable Note;
(e) Any Taxes that would not have been so imposed, assessed, levied or collected but for the failure of such by the holder or any other person the beneficial owner of the Note to comply with applicable a written request to the holders (or any request made in accordance with the procedures set out in the Indenture)
(A) to provide any certification, identification, information, documentation documents or other reporting requirements evidence concerning the nationality, residence, residence or identity of the holder or the beneficial owner or its connection with the Relevant Taxing Jurisdiction of or (B) to make any valid or timely declaration or claim or satisfy any other reporting, information or procedural requirements relating to such holdermatters if, if such in either case, compliance is required by statute statute, regulation or regulation administrative practice of the relevant Relevant Taxing Jurisdiction as a precondition condition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than Any withholding or deduction by imposed on a payment to or for the Guarantor or the Company or any paying agent from payments in respect benefit of such Securities;
(g) any Taxes an individual that is required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 or any other Directive on the taxation of savings income in implementing the form conclusion of interest payments, or any amendment thereof, the European Union Economic and Financial Affairs council meeting of 16 to 27 November 2000 or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amendedsuch Directive;
(ig) any Any withholding or deduction that is imposed on the Note that is presented for Taxes which payment, where presentation is required, by or on behalf of a holder who would not have been imposed if the relevant Securities had been presented able to avoid such withholding or deduction by presenting such Note to another paying agent in a Member State member state of the European Union; or
(jh) any Any combination of Section 3.02(a), the Taxes described in (b), (c), (d), (e), (f), a) through (g)) above. In addition, (h) and (i). Additional Amounts will not be payable to or for the account paid in respect of any Holder payment in respect of the Notes or the any Guarantee to any holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security Notes that is a fiduciary, a partnership, a limited liability company or any person other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only Notes to the extent that such payment would be required by the laws of a Relevant Taxing Jurisdiction to be included in the income for tax purposes of a beneficiary or settlor with respect to the such fiduciary, a member of such partnership, an interestholder in such limited liability company or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, that would not have been entitled to the payment of an Additional Amount such amounts had the such beneficiary, settlor, member, interestholder or beneficial owner or member received directly its beneficial or distributive share of been the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence holder of such payments by GuarantorNotes. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payableUnless otherwise stated, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, references in any context, context to the payment of principal of, and premiumany premium or interest on, if anyany Note, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall will be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 1 contract
Samples: Indenture
Payment of Additional Amounts. All payments made by the Issuer or any Guarantor under or with respect to the Guarantees Notes will be made free and clear of of, and without withholding or deduction for or on account of of, any present or future taxestax, dutiesduty, levieslevy, impostsimpost, assessments assessment or other governmental charges of whatever nature charge (hereinafter, “Taxes”) imposed or levied by or on behalf of the government of Canada, Bermuda or of any province, territory or jurisdiction thereof or therein or by any authority or agency therein or thereof having power to tax (a “Relevant Taxing Jurisdiction (“TaxesJurisdiction”), unless the Issuer or any Guarantor (as applicable) is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In If the event that Issuer or any Guarantor is so required to so withhold or deduct any amount for or on account of any Taxes from any payment made by it under or with respect to the GuaranteesNotes, the Issuer or such Guarantor (as applicable) will pay such additional amounts (hereinafter “Additional Amounts”) in respect of each such payment as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) by each Holder (including, as applicable, the beneficial owners in respect of any such Holder) after such withholding or deduction will equal not be less than the amount that the Holder (including, as applicable, the beneficial owners in respect of any such Holder Holder) would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
to: (a) any payment to a Holder or beneficial owner who is liable for such Taxes that are imposed in respect of such Note (i) by reason of such Holder or withheld solely because beneficial owner, or any other person entitled to payments on the Note, being a person with whom the Issuer or Guarantor does not deal at arm’s length (within the meaning of the Income Tax Act (Canada) (the “Tax Act”)) or (ii) by reason of the existence of any present or former connection between such holder Holder or beneficial owner (or between a fiduciary, settlersettlor, beneficiary, member or member shareholder of, or possessor of power over, such holder Holder or beneficial owner, if such holder Holder or beneficial owner is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(icorporation) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in and the Relevant Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership ownership, or receiving payments under or enforcing any rights in respect of such SecuritiesNote; (b) with any Tax that is levied or collected other than by withholding from payments on or in respect of the Taxing Jurisdiction imposing Notes; (c) any Note presented for payment (where presentation is required) more than 30 days after the later of (i) the date on which such Taxes, including being payment first becomes due or having (ii) if the full amount of the monies payable has not been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect paid to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more Holders of the total combined voting power Notes on or prior to such date, the date on which the full amount of all classes of stock such monies has been paid to the Holders of the Company Notes, except to the extent that the Holder or beneficial owner of the Guarantor;
Notes would have been entitled to such Additional Amounts on presentation of the same for payment on the last day of such period of 30 days; (bd) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
tax or any similar Tax; (ce) any Taxes Tax imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder a Holder or any other person beneficial owner to comply with applicable certification, informationidentification, documentation declaration, filing or other similar reporting requirements concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such holderHolder or beneficial owner, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction by regulation, as a precondition to relief reduction of, or exemption exemption, from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
Tax; (f) any Taxes that are payable by any method other than (i) withholding or deduction by imposed pursuant to Sections 1471 to 1474 of the Guarantor or the Company U.S. Internal Revenue Code of 1986, as amended (“FATCA”), or any paying agent successor version thereof, or any similar legislation imposed by any other governmental authority, or (ii) tax or penalty arising from payments in the Holder’s or beneficial owner’s failure to properly comply with the Holder’s or beneficial owner’s obligations imposed under the Canada-United States Enhanced Tax Information Exchange Agreement Implementation Act (Canada) or any treaty, law or regulation or other official guidance enacted by Canada implementing FATCA or an intergovernmental agreement with respect to FATCA or any similar legislation imposed by any other governmental authority, including, for greater certainty, Part XVIII and Part XIX of such Securities;
the Tax Act; or (g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State combination of the European Union; or
foregoing clauses (ja) any combination of Section 3.02(a), (b), (c), (d), (e), to (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (The Issuer or any amended or successor version that is substantively comparableGuarantor (as applicable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i1) make such withholding or deduction of Taxes and (ii2) remit the full amount of Taxes so deducted or withheld by it to the relevant Taxing Jurisdiction authority in accordance with all applicable lawslaw. The Issuer or any Guarantor (as applicable) will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available furnish to the holders Holders of the Offered SecuritiesNotes, within 90 30 days after the date the payment of any Taxes so deducted or withheld by it is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by it. The Issuer and the Guarantor or ifGuarantors will indemnify and hold harmless each Holder (including, notwithstanding Guarantor’s efforts to obtain such receiptsas applicable, the same are beneficial owners in respect of any such Holder) and, upon written request, will reimburse each such Holder (including, as applicable, the beneficial owners in respect of any such Holder) for the amount of (i) any Taxes (other than any Taxes for which Additional Amounts would not obtainablebe payable pursuant to clauses (a) through (g) above) levied or imposed and paid by such Holder (including, other evidence as applicable, the beneficial owners in respect of any such Holder) as a result of payments by Guarantor. At least 30 days prior to each date on which any payment made under or with respect to the Guarantees is due Notes which have not been withheld or deducted and payableremitted by the Issuer or any Guarantor (as applicable) in accordance with applicable law, if the Guarantor will be obligated to pay (ii) any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, and (iii) any Taxes (other than any Taxes for which Additional Amounts would not be payable pursuant to clauses (a) through (g) above) imposed with respect to any reimbursement under clause (i) or (ii) above, but excluding any such paymentTaxes on such Holder’s (including, as applicable, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that beneficial owners in respect of any such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issuedHolder’s) net income. Whenever in this Indenture, the Securities or the Guarantees Indenture there is mentioned, in any context, the payment of principal (and premium, if any), redemption amount, purchase price, interest or any other amount payable under or with respect to any SecurityNote, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The obligations of the Issuer and the Guarantors under this Section 2.14 shall survive the termination of this Indenture and the payment of all amounts under or with respect to the Notes.
Appears in 1 contract
Samples: First Supplemental Indenture (Brookfield Infrastructure Partners L.P.)
Payment of Additional Amounts. (a) All payments made by the Company or any Subsidiary Guarantor under or with respect to the Guarantees will Securities or any Guarantee shall be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature Taxes imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”)Authority of the Federative Republic of Brazil or of Japan, unless the Guarantor Company or such Subsidiary Guarantor, as the case may be, is required to withhold or deduct any amount for or on account of Taxes by law or by the interpretation or administration thereof. In If the event that Company or any Subsidiary Guarantor is required to so withhold or deduct any amount for or on account of any Taxes imposed by a Taxing Authority of the Federative Republic of Brazil or 57 of Japan from any payment made under or with respect to the GuaranteesSecurities or any Guarantee of such Subsidiary Guarantor, the Guarantor will Company or such Subsidiary Guarantor, as the case may be, shall pay such additional amounts (“"Additional Amounts”") as may be necessary so that the net amount received by each holder Holder of Securities (including Additional Amounts) after such withholding or deduction will equal shall not be less than the amount that such the Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no . No such Additional Amounts will shall be payable with respect to a payment made to a holder Holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii"Excluded Holder") with respect to any withholding Taxes imposed by Tax which would not have been imposed, payable or due: (i) but for the United Statesfact that the Holder (or where the Holder is an estate, nominee, trust, partnership or corporation, any fiduciary, settlor, beneficiary, member or shareholder) is or was a domiciliary, national or resident of, engages in or engaged in business in, maintains or maintained a permanent establishment or physically present in, Brazil or Japan or otherwise has some present or former connection with respect Brazil or Japan; (ii) but for the failure to the United States comply with a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of request by the Company or any Subsidiary Guarantor to satisfy any certification, identification or other reporting requirements, whether imposed by statute, treaty, regulation or administrative practices, concerning nationality, residence or connection with Brazil or Japan; or (iii) if, where presentation is required, the Guarantor;
presentation for payment had occurred within 30 days after the date such payment was due and payable or was provided for, whichever is later. Notwithstanding the preceding sentence, the limitations on the Company's obligation to pay Additional Amounts set forth in clause (bii) of the preceding sentence shall not apply if a certification, identification, or other reporting requirement described in clause (ii) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to such Holders or beneficial owners (taking into account any relevant differences between U.S. and Brazilian law, regulation or administrative practice) than comparable information or other reporting requirements imposed under U.S. tax law, regulation (including proposed regulations) and administrative practice or other reporting requirements imposed as of the date of the Offering Memorandum under U.S. tax law, regulation (including proposed regulations) and administration practice (such as IRS Forms 1001, W-8 and W-9). The obligation to pay Additional Amounts in respect of Taxes shall not apply to (a) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed or any similar Tax or (b) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable . The Company or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005Subsidiary Guarantor, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a)applicable, (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and deduction, (ii) remit the full amount of Taxes so deducted or withheld to the relevant authority (the "Taxing Jurisdiction Authority") in accordance with all applicable lawslaw, (iii) use their best efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes and (iv) in the event that such certified copies of tax receipts are obtained, promptly send such certified copies of tax receipts to the Paying Agent for prompt forwarding to any holder that has made a written demand therefor of the Paying Agent. The Guarantor will Company and the Subsidiary Guarantor, as applicable, shall use its commercially reasonable their best efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor willIn the event that such a receipt is obtained, upon request, make available a Holder may obtain such a certified copy by providing written demand therefor to the holders Paying Agent. The Paying Agent shall contact the Company or such Subsidiary Guarantor, which shall provide such certified copy to the Paying Agent for prompt forwarding to the Holder, the Company or the Subsidiary Guarantor and shall attach to each certified copy a certificate stating (x) that the amount of withholding tax evidenced by the certified copy was paid in connection with payments in respect of the Offered principal amount of Securities then outstanding and (y) the amount of such withholding tax per U.S.$1,000 of principal amount of the Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if. If, notwithstanding the Company's or such Subsidiary Guarantor’s 's efforts to obtain such receipts, the same are not obtainable, the Company or such Subsidiary Guarantor will provide to the Paying Agent other evidence of such payments by the Company or such Subsidiary Guarantor.
(b) The Company or such Subsidiary Guarantor, as the case may be, shall indemnify and hold harmless each Holder of Securities (other than an Excluded Holder) and upon written request of each holder of Securities (other than an Excluded Holder), reimburse each such Holder, for the amount of (i) any such Taxes so levied or imposed and paid by such Holder as a result of payments made under or with respect to the Securities, (ii) any liability (including penalties, interest and expenses) arising under or with respect to the foregoing clause (i), and (iii) any Taxes so levied or imposed with respect to any reimbursement under the foregoing clauses (i) or (ii), so that the net amount received by such Holder after such reimbursement shall not be less than the net amount the Holder would have received if Taxes on such reimbursement had not been imposed, but excluding any Taxes on such Holder's net income. Neither Additional Amounts nor amounts required to be reimbursed under the preceding sentence shall be payable for or on account of (A) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes; or (B) any Taxes that are imposed or withheld by reason of the failure by such holder to comply within 45 days of a written request of the Company or the Subsidiary Guarantor addressed to such holder or (if it is not possible for the Company or the Subsidiary Guarantor to furnish such request at a time that would allow at least 45 days for compliance) such shorter period reasonable in the circumstances as may be necessary to enable the Company or the Subsidiary Guarantor to comply with requests from any Taxing Authority: (x) to provide information concerning the nationality, residence or identity of such holder; or (y) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of either clause (x) or (y) above, is required or imposed by statute, treaty, regulation or administrative practice of a Taxing Authority as a precondition to exemption from all or any part of such Taxes.
(c) At least 30 days prior to each date on which any payment under or with respect to the Guarantees Securities is due and payablepayable (unless such obligation to pay Additional Amounts arises after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Company or any Subsidiary Guarantor will shall be obligated to pay Additional Amounts with respect to such payment, the Company or such Subsidiary Guarantor will shall deliver to the Trustee and each Paying Agent an Officer’s Officers' Certificate stating the fact that such Additional Amounts will shall be payable, payable and shall specify by country the amounts so to be payable and will shall set forth such other information as is necessary to enable such the Trustee and each Paying Agent to pay such Additional Amounts to holders of Offered Securities Holders on the payment date. Each Officers' Certificate shall be relied upon until receipt of a further Officers' Certificate addressing such matters. The provisions of this Article II shall survive Company and any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Subsidiary Guarantor shall be substituted for indemnify the date Trustee and any Paying Agent for, and hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on which the Offered Securities was issuedtheir part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers' Certificate furnished pursuant to this Section. Whenever in this Indenture, the Securities or the Guarantees Indenture there is mentioned, in any context, the payment of principal and principal, premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section 4.15, to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to the provisions of this Section 4.15 and express mention of the payment of Additional Amounts in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
(d) The obligations of the Company and the Subsidiary Guarantors under this Section 4.15 shall survive the termination of this Indenture and the payment of all other amounts under or with respect to the Securities.
Appears in 1 contract
Payment of Additional Amounts. All payments (a) Payments made by the Issuer, a Guarantor under or with a paying agent, as applicable, on the Notes or in respect to the Guarantees of a Note Guarantee will be made free and clear of of, and without withholding or deduction for or on account of of, any present or future taxesincome, dutiesstamp or other tax, leviesduty, impostslevy, assessments impost, assessment or other governmental charges charge of whatever any nature whatsoever (“Taxes”), unless the Issuer, a Guarantor or a paying agent is required to withhold or deduct Taxes by law.
(b) If any withholding or deduction for or on account of Taxes imposed or levied by or on behalf of the United Kingdom, Jersey, any Taxing Jurisdiction (“Taxes”), unless other jurisdiction in which the Issuer or any Guarantor is incorporated, organized, engaged in business or otherwise resident for tax purposes, or any other jurisdiction from or through which such payment is made, or in each case any political subdivision or taxing authority or agency thereof or therein (each, a “Relevant Jurisdiction”) is at any time required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes be made from any payment made under or with respect to the GuaranteesNotes or the Note Guarantee, the Guarantor Issuer or the applicable Guarantor, as applicable, will pay such additional amounts (“Additional Amounts”) on the Notes or in respect of the applicable Note Guarantee as may be necessary so that the net amount received by each holder of Securities the Notes (including Additional Amounts) after such withholding or deduction will equal not be less than the amount that such Holder the holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofTaxes:
(a1) any Taxes that are would not have been imposed but for the Holder or withheld solely because the beneficial owner of such holder Note (or a fiduciary, settlersettlor, beneficiary, member or member shareholder of, or possessor of a power over, such holder Holder or beneficial owner, if such holder Holder or beneficial owner is an estate, trust, partnership, limited liability company partnership or other fiscally transparent entity, or corporation) being considered as having a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection with a Relevant Jurisdiction (other than a connection arising solely as a result of the mere fact acquisition, ownership or disposition of ownership the Notes, the receipt of any payment under or with respect to the Notes or any Note Guarantee, or the exercise or enforcement of any rights under or with respect to the Notes, this Indenture or any Note Guarantee), including, without limitation, such SecuritiesHolder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as a resident thereof or domiciled therein or a national thereof or being or having been engaged in a resident thereoftrade or business therein or having or having had a permanent establishment therein;
(iii2) with respect to any withholding Taxes that would not have been imposed by but for the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more failure of the total combined voting power of all classes of stock Holder or any other person to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the Relevant Jurisdiction of the Company Holder or beneficial owner, if compliance is required by statute, by regulation of the GuarantorRelevant Jurisdiction by an applicable income tax treaty to which the Relevant Jurisdiction is a party as a precondition to exemption from such Tax;
(b3) any payable other than by withholding from payments of principal of or interest on the Notes or from payments in respect of a Note Guarantee;
(4) that would not have been imposed but for a change in law, regulation or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;
(5) that are estate, inheritance, gift, sales, excise, transfer, excise wealth, capital gains or personal property Taxes imposed with respect to the Securities, except as otherwise provided hereinor similar Taxes;
(c6) required to be withheld by any Taxes paying agent from any payment of principal of or interest on any Note, if such payment can be made without such withholding by at least one other paying agent;
(7) that would not have been imposed solely as a result of but for the presentation by the holder of such Securities (any Note, where presentation is required) , for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is was duly provided for, whichever is later, occurred later (except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities Note been presented for payment on any date during the last day of such 30-day period);
(d) any Taxes 8) that are imposed solely as a result under Sections 1471 through 1474 of the failure Code as of such holder the Issue Date (or any other person amended or successor provision that is substantively comparable), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to comply with applicable certificationSection 1471(b) of the Code as of the Issue Date (or any amended or successor provision that is substantively comparable) or any fiscal or regulatory legislation, information, documentation rules or other reporting requirements concerning the nationality, residence, identity or practices adopted pursuant to any intergovernmental agreement entered into in connection with the Taxing Jurisdiction implementation of such holder, if such compliance is required by statute or regulation sections of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;Code; or
(e9) in the case of any combination of clauses (1), (2), (3), (4), (5), (6), (7) and (8) above; nor shall Additional Amounts be paid with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason payment of the failure principal of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) interest, if any, on any Taxes that are payable by any method other than withholding Note or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of a Note Guarantee to any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted holder who is a fiduciary or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, a partnership or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder owner that is not the sole Holder or holder beneficial owner of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only payment to the extent that a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of such partnership or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to such Additional Amounts had it been the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share holder of the payment. In additionNote.
(c) The Issuer, no Additional Amounts a Guarantor or the paying agent, as applicable, will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such any required withholding or deduction of Taxes deduction, and (ii) remit the full amount of Taxes so deducted or withheld by it to the relevant Taxing Relevant Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever .
(d) All references in this Indenture, the Securities or the Guarantees there is mentionedother than under Sections 8.02, in any context8.03 and 8.06 of this Indenture, to the payment of the principal and premiumor interest, if any, redemption priceon or the net proceeds received on the sale or exchange of, interest any Notes or any other amount payable payment made under or with respect to any Security, such mention the Note Guarantee shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such that context, Additional Amounts are, were or would be payable payable.
(e) In addition, the Issuer shall pay any present or future stamp, issue, registration, court, documentary, excise, property, or similar Taxes (i) imposed by any Relevant Jurisdiction in respect thereofof the execution, issuance, delivery, or registration of the Notes, any Note Guarantee, this Indenture, or any other document or instrument referred to therein, or the receipt of any payments with respect to the Notes, or (ii) imposed by any jurisdiction in respect of the enforcement of the Notes, any Note Guarantee, this Indenture, or any other document or instrument referred to therein.
(f) The Issuer’s and a Guarantor’s obligations to pay Additional Amounts if and when due will survive the termination of this Indenture and the payment of all other amounts in respect of the Notes and shall apply mutatis mutandis to any successor of the Issuer or any Guarantor, and to any jurisdiction in which such successor is incorporated, organized, engaged in business or otherwise resident for tax purposes, and any political subdivision or governmental authority thereof or therein.
Appears in 1 contract
Samples: Indenture (Delphi Technologies PLC)
Payment of Additional Amounts. (a) All payments made by or on behalf of any Note Guarantor, other than a Note Guarantor organized in the Guarantor United States, any state thereof or the District of Columbia, under or with respect to the Guarantees any Note Guarantee (each such Person, a “Payor”) will be made free and clear of and without any withholding or deduction for or on account of any present tax, duty, levy, impost, assessment or future taxes, duties, levies, imposts, assessments or other governmental charges charge of whatever nature (collectively, “Tax”) imposed or levied by or on behalf of any jurisdiction in which such Payor is organized, resident or carrying on business for tax purposes or from or through which such Payor makes any payment on its Note Guarantee or any department or political subdivision of any of the foregoing (each, a “Relevant Taxing Jurisdiction (“TaxesJurisdiction”), unless the Guarantor Payor (or an applicable withholding agent) is required to withhold or deduct Taxes by law law. For the avoidance of doubt, a Relevant Taxing Jurisdiction shall not include the United States, any state thereof or by the interpretation District of Columbia. If the Payor (or administration thereof. In the event that Guarantor an applicable withholding agent) is required by law to so withhold or deduct any amount for or on account of any Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Guaranteesany Note Guarantee, the Guarantor Payor, subject to the exceptions listed below, will pay such additional amounts (“Additional Amounts”) as may be necessary so to ensure that the net amount received by each holder Holder or beneficial owner of Securities (including Additional Amounts) the Notes after such withholding or deduction (including withholding or deduction attributable to Additional Amounts payable hereunder) will equal not be less than the amount that such the Holder or beneficial owner would have received if such Taxes had not been required to be so withheld or deducted; provided that no .
(b) A Payor will not, however, pay Additional Amounts will be payable with respect to a payment to a holder Holder or beneficial owner of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofNotes:
(ai) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the existence of any Taxes that are imposed present or withheld solely because such holder former connection between the Holder or beneficial owner (or between a fiduciary, settler, beneficiary, member or member shareholder of, or possessor of a power over, such holder Holder or beneficial owner, if such holder Holder or beneficial owner is an estate, trust, partnership, limited liability company partnership or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(icorporation) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in and the Relevant Taxing Jurisdiction (other than any connection resulting solely from the acquisition, ownership, holding or has disposition of Notes, the receipt of payments thereunder or had a permanent establishment in under any Note Guarantee and/or the Taxing Jurisdictionexercise or enforcement of rights under any Notes or any Note Guarantee);
(ii) has to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the failure of the Holder or had beneficial owner of Notes, following the Company’s or the Payor’s written request addressed to the Holder, to the extent such Holder or beneficial owner is legally eligible to do so, to comply with any present certification, identification, information or former connection (other than reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the mere fact rate of ownership of such Securities) with deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction imposing such Taxes(including, including being without limitation, a certification that the Holder or having been a citizen or beneficial owner is not resident thereof or being treated as being or having been a resident thereofin the Relevant Taxing Jurisdiction);
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, capital gains, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided hereintax or any similar Taxes;
(civ) any to the extent the Taxes giving rise to such Additional Amounts would not have been imposed solely as a result of but for the presentation by the Holder or beneficial owner of such Securities (any Note, where presentation is required) , for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is occurs later, except ;
(v) to the extent that the beneficiary or holder thereof would have been entitled Taxes giving rise to the payment of such Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if but for the relevant Securities had been presented to another paying agent in a Member State Holder or beneficial owner not dealing at arm’s length, within the meaning of the European UnionIncome Tax Act (Canada), with such Payor; or
(jvi) any combination of Section 3.02(aitems (i), (bii), (ciii), (d), (e), (f), (g), (hiv) and (iv). Additional Amounts will also shall not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date paid with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required any payment on any Note Guarantee to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that owner who is a fiduciary, partnership, limited liability company a partnership (or entity treated as a partnership for tax purposes) or anyone other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only that payment to the extent that payment would be required by the laws of the Relevant Taxing Jurisdiction to be included in the income, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, who would not have been entitled to the payment of an Additional Amount Amounts had the that beneficiary, settlor, member or interest holder been the beneficial owner owner.
(c) The Payor or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts applicable withholding agent will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make any such withholding or deduction of Taxes required by applicable law and (ii) timely remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction authority in accordance with all applicable lawslaw. The Guarantor Payor, or the applicable withholding agent, will use its commercially make reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Authority Jurisdiction imposing such Taxes. The Guarantor willPayor, upon requestor the applicable withholding agent, make available will provide to the holders of the Offered SecuritiesTrustee, within 90 days a reasonable time after the date the payment of any Taxes so deducted or withheld is are due pursuant to applicable law, either a certified copies copy of tax receipts evidencing such payment, or, if such tax receipts are not reasonably available to the Payor, such other documentation that provides reasonable evidence of such payment by the Guarantor Payor.
(d) Where Tax is payable pursuant to Regulation 803 of the Income Tax Act (Canada) by a Holder or ifbeneficial owner of the Notes in respect of any amount payable under any Note Guarantee to the Holder (other than by reason of a transfer of the Notes to a person resident in Canada with whom the transferor does not deal at arm’s length for the purposes of such Act), notwithstanding Guarantor’s efforts to obtain but no Additional Amount is paid in respect of such receiptsTax, the same are not obtainable, other evidence Payor will pay as or on account of interest to the Holder an amount equal to such Tax (a “Regulation 803 Reimbursement”) plus an amount equal to any Tax required to be paid by the Holder or beneficial owner as a result of such Regulation 803 Reimbursement within 45 days after receiving from the Holder a notice containing reasonable particulars of the Tax so payable, provided such Holder or beneficial owner would have been entitled to receive Additional Amounts on account of such Tax (and only to the extent of such Additional Amounts that such Holder or beneficial owner would have been entitled to receive) but for the fact that it is payable otherwise than by deduction or withholding from payments by Guarantor. At least 30 days prior to each date on which any payment made under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor any Note Guarantee.
(e) The Payor will deliver to the Trustee an Officer’s Officers’ Certificate stating the fact that such Additional Amounts will be payablepayable prior to the date on which such payments will be made, and the amounts so payable payable, and will set forth such other information as is necessary to enable such the Trustee (or applicable paying agent) to pay such Additional Amounts to holders of Offered Securities Holders on the payment date. Any such Officers’ Certificate will be delivered at least two Business Days in advance of when the payments in question are required to be made (unless a shorter period of time is acceptable to the Trustee in its reasonable discretion). The provisions Payor will promptly publish a notice in accordance with Section 11.2 hereof stating that such Additional Amounts will be payable and describing the obligation to pay such amounts.
(f) The Payors, jointly and severally, will reimburse the Holders or beneficial owners of Notes, upon written request of such Holder or beneficial owner of Notes and certified proof of payment for the amount of (i) any Taxes levied or imposed by a Relevant Taxing Jurisdiction and payable by such Holder or beneficial owner in connection with payments made under or with respect to any Note Guarantee; and (ii) any Taxes levied or imposed with respect to any reimbursement under the foregoing clause (i) or this Article II clause (ii), so that the net amount received by such Holder or beneficial owner after such reimbursement will not be less than the net amount such Holder or beneficial owner would have received if the Taxes giving rise to the reimbursement described in clauses (i) and/or (ii) had not been imposed, provided, however, that the indemnification obligation provided for in this Section 4.21(f) shall not extend to Taxes imposed for which the Holder or beneficial owner of the Notes would not have been eligible to receive payment of Additional Amounts hereunder by virtue of clauses (i) through (vi) of Section 4.21(b) hereof, or to the extent such Holder or beneficial owner received Additional Amounts with respect to such payments.
(g) In addition, the Payor will pay any stamp, issue, registration, court, documentary, excise or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction at any time in respect of the execution, issuance, registration or delivery of any Note Guarantee or any other document or instrument referred to thereunder and any such taxes, charges or duties imposed by any Relevant Taxing Jurisdiction at any time as a result of, or in connection with, (i) any payments made pursuant to any Note Guarantee or any other such document or instrument referred to thereunder and/or (ii) the enforcement of any Note Guarantee or any other such document or instrument referred to thereunder.
(h) The obligations described under this Section 4.21 will survive any termination of the termination, defeasance or discharge of this Indenture and shall will apply mutatis mutandis to any successor Person, to any Payor and to any jurisdiction in which the Guarantor or any such successor Person to the Guarantor is organized (other than the United States, any state thereof or the District of Columbia), carrying on business or is engaged in business otherwise resident for tax Tax purposes or any political subdivisions or taxing authority or agency jurisdiction (other than the United States, any state thereof or therein; provided, however, the date on District of Columbia) from or through which the Guarantor changes payment is made by such successor or its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. respective agents.
(i) Whenever in this Indenture, the Securities or the Guarantees there is mentionedIndenture refers to, in any context, the payment of principal and principal, premium, if any, redemption price, interest or any other amount payable under or with respect to any SecurityNote Guarantee, such mention shall be deemed to include mention of reference includes the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or other payments that would be payable in respect thereofpursuant to this Section 4.21, if applicable.
Appears in 1 contract
Samples: Indenture (Valeant Pharmaceuticals International, Inc.)
Payment of Additional Amounts. All payments made by the Guarantor Company or any of the Guarantors under or with respect to the Securities and the Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”), unless the Guarantor Company or any of the Guarantors, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor the Company or any of the Guarantors is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Securities or the Guarantees, as the Guarantor case may be, the Company or any of the Guarantors, as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such the holder’s mere ownership of the Offered Securities , nor will the Company or any of the Guarantors, as the case may be, pay Additional Amounts or for or on the account of:
(a) any Taxes that are imposed or withheld solely because the beneficial owner of such holder Securities or a fiduciary, settler, beneficiary, or member of such holder the beneficial owner if such holder the beneficial owner is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was was, with respect to the United States States, a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or a corporation that has accumulated earnings to avoid United States federal income tax; or;
(iv) owns or owned 10% or more of the issued share capital or total combined voting power of all classes of stock of the Company or any of the GuarantorGuarantors; or
(v) with respect to Taxes that are imposed or withheld by Ireland, is entitled to profits available for distribution of the Company or any of the Guarantors;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder Holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;period;
(d) any Taxes imposed solely as a result of the failure of such holder the beneficial owner or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of the holder or beneficial owner of such holderSecurities, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder the beneficial owner to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor Company or any of the Company Guarantors or any paying agent from payments in respect of such Securities;Securities;
(g) any Taxes that are required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agentagent;
(h) [reserved];
(hi) with respect to withholding Taxes imposed by Ireland, any such Taxes imposed by reason of the failure of the beneficial owner to fulfill the requirements of section 246(3) of the Taxes Consolidation Act, 1997 of Ireland (as amended);
(j) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any Luxembourg law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended, introducing a 20% withholding tax on certain interest payments;
(ik) with respect to withholding Taxes imposed by the United States, any such Taxes imposed under Sections 1471 through 1474 of the Code, and any regulations or other administrative authority promulgated thereunder, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into in connection with any of the foregoing and any fiscal or regulatory legislation, rules or practices adopted pursuant to any such intergovernmental agreement;
(l) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(jm) any combination of Section 3.02(a14.02(a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k) and (il). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any a Holder or the holder of a beneficial interest in an Offered Security Securities that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder a beneficial owner of Securities that is not the sole Holder or holder beneficial owner of such beneficial interests of such Offered SecuritySecurities, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of The Company or any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor Guarantors, as the case may be, will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor Company or any of the Guarantors, as applicable, will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor Company or any of the Guarantors, as the case may be, will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor Company or any of the Guarantors or if, notwithstanding Guarantorthe Company’s or any of the Guarantors’ efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantorthe Company or any of the Guarantors. At least 30 days prior to each date on which any payment under or with respect to the Securities or Guarantees is due and payable, if the Guarantor Company or any of the Guarantors will be obligated to pay Additional Amounts with respect to such payment, the Guarantor Company or any of the Guarantors will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. In addition, the Company will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in Luxembourg or the United States or any political subdivision or taxing authority of or in the foregoing in respect of the creation, issue, offering, enforcement, redemption or retirement of the Securities. However, the Company will not be required to pay any Luxembourg registration duties in connection with the voluntary registration, by any person other than the Company, of the notes or any related document with the Administration de l’enregistrement, des domaines et de la TVA in Luxembourg or registration, submission or filing of the notes in Luxembourg when such registration, submission or filing is not required to create, maintain, perfect or enforce the rights of the Company under the notes. The provisions of this Article II XIV shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor Company or any of the Guarantors or any successor Person to the Guarantor Company or any of the Guarantors, as the case may be, is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; therein; provided, however, the date on which the Guarantor Company or any of the Guarantors changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor Company or any of the Guarantors, as the case may be, shall be substituted for the date on which the Offered series of Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 1 contract
Payment of Additional Amounts. (a) All payments made by the Guarantor Issuer under or with respect to the Guarantees will Notes, or by any of the Guarantors under or with respect to any Note Guarantee, shall be made free and clear of of, and without withholding or deduction for or on account of, any Tax, unless the withholding or deduction of such Tax is then required by law. If any deduc-tion or withholding by any applicable withholding agent for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature Taxes imposed or levied by or on behalf of any Taxing Jurisdiction jurisdiction (“Taxes”), unless or any department or political subdivision thereof or therein) (a) in which the Issuer or any Guarantor is at any time incorporated or organized, engaged in business for tax purposes or resident for tax pur-poses or (b) from or through which payment is made by or on behalf of the Issuer or any Guarantor (including the jurisdiction of any Paying Agent) will at any time be required to withhold or deduct Taxes by law or be made in respect of any payments made by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made Issuer under or with respect to the GuaranteesNotes or any of the Guarantors under or with respect to any Note Guarantee, in-cluding payments of principal, redemption price, purchase price, interest or premium (each such jurisdiction (or any department or political subdivision thereof or therein) referred to in (a) or (b) above, a “Tax Jurisdiction”), then the Guarantor will Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary so in order that the net amount amounts received by each holder in respect of Securities such payments after such withholding, deduc-tion or imposition (including any such withholding, deduction or imposition in respect of any such Additional Amounts) after will equal the respective amounts that would have been received in respect of such payments in the ab-sence of such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducteddeduction; provided provided, however, that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
re-spect to: (a1) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure existence of a Holder any actual or the holder of a beneficial interest in an Offered Security deemed (pursuant to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice applicable Tax law of the relevant Taxing Authority as a precondition Tax Jurisdiction, such as, if applica--92-
(b) In addition to an exemption fromthe foregoing, the Issuer and the Guarantors shall also pay any present or future stamp, issue, registration, court or documentary Taxes, or reduction in, the relevant any other excise or property Taxes, charges or similar levies (including penalties, additions to tax, interest and (yany other reasonable expenses related thereto) at least 90 days prior which are levied by any Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, this Inden-ture, any Note Guarantee or any other document or instrument referred to therein, or the first payment date receipt of any payments with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entitythereto, or to such holder that is not enforcement of, any of the sole Holder Notes or holder of such beneficial interests of such Offered Securityany Note Guarantee.
(c) If the Issuer or any Guarantor, as the case may be. This exception, however, becomes aware that it will apply only be obligated to the extent that a beneficiary pay Additional Amounts with respect to any payment under or settlor with respect to the fiduciaryNotes or any Note Guarantee, or a beneficial owner or member each of the partnershipIssuer or the relevant Guarantor, limited liability company or other fiscally transparent entityas the case may be, would not have been entitled will deliver to the Trustee and Paying Agent on a date that is at least 30 days prior to the date of that payment of (unless the obligation to pay Additional Amounts arises less than 45 days prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee and Paying Agent promptly thereafter) an Additional Amount had Officer’s Certificate stating the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no fact that Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant payable and the amount estimated to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereofbe so payable. The Guarantor Officer’s Certificate must also set forth any other information rea-sonably necessary to enable the Paying Agent to pay Additional Amounts to holders on the relevant payment date. The Trustee and Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary.
(d) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will also (i) make such withholding or deduction of Taxes all with-holdings and (ii) deductions required by law and will remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction Tax authority in accordance with all applicable lawslaw. The Issuer or the relevant Guarantor will use its commercially reasonable efforts to obtain certified copies of tax Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxeswithheld. The Is-xxxx or the relevant Guarantor will, will furnish to the Trustee or to a holder upon reasonable written request, make available to the holders of the Offered Securities, within 90 days a reasonable time after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable lawmade, certified copies of tax Tax receipts evidencing such payment by the Guarantor Issuer or a Guarantor, as the case may be, or if, notwithstanding Guarantorsuch entity’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. -93-
(e) Whenever in this Indenture, the Securities or the Guarantees Indenture there is mentioned, in any context, the payment of amounts based up-on the principal and premium, if any, redemption priceamount of the Notes or of principal, interest or of any other amount payable under under, or with respect to to, any Securityof the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. (f) The above obligations will survive any termination, defeasance or discharge of this Indenture, any transfer by a holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any successor Person to the Issuer or any Guarantor and to any jurisdiction in which any successor Person to the Issuer or any Guarantor is in-corporated or organized, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which any payment on the Notes (or any Note Guarantee) is made by or on behalf of such Person, and any department or political subdivision thereof or therein.
Appears in 1 contract
Samples: Indenture (Diversey Holdings, Ltd.)
Payment of Additional Amounts. (a) All payments made by the Guarantor under Company or with any of the Guarantors in respect to of the Guarantees will Bonds or the Guarantees, as applicable, shall be made free and clear of of, and without withholding or deduction for or on account of of, any present or future taxes, duties, leviesassessments, imposts, assessments fees or other governmental charges of whatever nature (and any fines, penalties or interest related thereto) imposed or levied by or on behalf of the Cayman Islands, the jurisdiction of incorporation of the Guarantors or any Taxing Jurisdiction jurisdiction from or through which payments are made or are deemed to be made or any political subdivision or authority of or in such jurisdictions having the power to tax (“Taxes” and such jurisdictions, “Taxing Jurisdictions”), unless the Guarantor such withholding or deduction is required by law. In that event, the Company or the relevant Guarantor, as applicable, shall pay to withhold or deduct Taxes by law or each Holder such Additional Amounts as may be necessary in order that every net payment made by the interpretation Company or administration thereof. In any of the event that Guarantor is required to so withhold Guarantors, as applicable, on each Bond after deduction or deduct any amount withholding for or on account of any Taxes from any present or future Tax imposed upon or as a result of such payment made under or with respect shall not be less than the amount then due and payable on such Bond.
(b) The foregoing obligation to the Guarantees, the Guarantor will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) after such withholding , however, shall not apply to or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with in respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in any Tax which would not have been imposed but for the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had existence of any present or former connection (other than between such Holder, on the mere fact of ownership of such Securities) with the one hand, and a Taxing Jurisdiction imposing or any political subdivision or authority of or in a Taxing Jurisdiction, on the other hand (including, without limitation, such Taxes, including Holder being or having been a citizen or resident thereof or being treated as being having been engaged in a trade or business or present therein or having, or having been had, a resident thereofpermanent establishment therein), other than the mere receipt of such payment or the ownership or holding of such Bond;
(iiiii) with respect to any withholding Taxes imposed by the United States, is or was with respect Tax to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes extent it would not have been so imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of but for the presentation of by such Securities (where presentation is required) Holder for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is occurs later, except ;
(iii) any Tax to the extent that the beneficiary such tax, duty, assessment or holder thereof other governmental charge would not have been entitled to the payment of Additional Amounts had the Securities been presented imposed but for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person Holder to comply with applicable any certification, information, documentation identification or other reporting requirements concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such holder, the Holder if (a) such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority law as a precondition to an exemption fromfrom all or a part of such tax, duty, assessment or reduction in, the relevant Taxes, other governmental charge and (yb) at least 90 30 days prior to the first payment date with respect to on which the Guarantor Company or any of the Guarantors, as applicable, shall apply this paragraphclause (iii), the Guarantor Company or any of the Guarantors, as applicable, shall have notified all Holders of Offered Securities in writing Bonds that they some or all Holders of Bonds shall be required to provide comply with such declaration requirement;
(iv) any estate, inheritance, gift, sales, capital gains, transfer, excise, personal property or claim. similar Tax;
(v) any Tax which is payable other than by deduction or withholding from payments of principal of or interest on the Bond; or
(vi) any combination of the above.
(c) The Company or any of the Guarantors, as applicable, shall also pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies which arise in any jurisdiction from the execution, delivery, registration or the making of payments in respect of the Bonds or the Guarantees, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside of Brazil or the Cayman Islands other than those resulting from, or required to be paid in connection with, the enforcement of the Bonds or the Guarantees following the occurrence of any Event of Default.
(d) No Additional Amounts also will not shall be payable paid with respect to a payment on any Bond to a Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, or limited liability company or other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only payment to the extent that a beneficiary or settlor with respect to the fiduciary, such fiduciary or a beneficial owner or member of the partnership, such partnership or limited liability company or other fiscally transparent entity, beneficial owner would not have been entitled to the receive payment of an the Additional Amount Amounts had the beneficiary, settlor, member or beneficial owner or member received directly its beneficial or distributive share been the Holder of the payment. In addition, no Additional Amounts will be paid on account of Bond.
(e) The Company or any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code Guarantors, as applicable, shall provide the Trustee with the official acknowledgment of the relevant taxing authority (or, if such acknowledgment is not available, without unreasonable burden or expense, a certified copy thereof or, if such certified copy is not available, other documentation satisfactory to the Trustee) evidencing any payment of taxes in respect of which the Company or any amended of the Guarantors, as applicable, has paid any Additional Amounts. Copies of such documentation shall be made available by the Trustee to the Holders of the Bonds or successor version that is substantively comparablethe Paying Agents, as applicable, upon request therefor.
(f) and The Company or any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also of the Guarantors, as applicable, shall:
(i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld at least 10 Business Days prior to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At first Payment Date (and at least 30 days 10 Business Days prior to each succeeding Payment Date or any Redemption Date or Maturity date on which if there has been any payment under or change with respect to the Guarantees is due and payablematters set forth in the below-mentioned Officers’ Certificate), if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee and each Paying Agent an Officer’s Certificate stating Officers’ Certificate
(A) specifying the fact that such Additional Amounts will be payableamount, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders if any, of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever taxes described in this Indenture, Section 4.7 (the Securities “Relevant Withholding Taxes”) required to be deducted or the Guarantees there is mentioned, in any context, withheld on the payment of principal of or interest on the Bonds to Holders and premiumthe Additional Amounts, if any, redemption pricedue to Holders in connection with such payment, interest and (B) certifying that the Company or any of the Guarantors, as applicable, shall pay such deduction or withholding;
(ii) prior to the due date for the payment thereof, pay any such Relevant Withholding Taxes, together with any penalties or interest applicable thereto;
(iii) within 15 days after paying such Relevant Withholding Taxes, deliver to the Trustee and each Paying Agent evidence of such payment and of the remittance thereof to the relevant taxing or other amount payable under authority as described in this Section 4.7; and
(iv) pay any Additional Amounts due to Holders on any Interest Payment Date, Redemption Date or date of Maturity to the Trustee in accordance with the provisions of this Section 4.7 and Section 2.4.
(g) The Company shall indemnify the Trustee and each Paying Agent for, and hold each harmless against, any loss, liability or expense reasonably incurred without gross negligence, bad faith or willful misconduct on such Person’s part, arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section 4.7 or the failure of the Trustee or any Paying Agent for any reason (other than its own gross negligence, bad faith or willful misconduct) to receive on a timely basis any such Officers’ Certificate or any information or documentation requested by it or otherwise required by applicable law or regulations to be obtained, furnished or filed in respect of such Relevant Withholding Taxes. The Company shall make available to any SecurityHolder requesting the same, such mention evidence that the applicable Relevant Withholding Taxes have been paid.
(h) Any Officers’ Certificate required by this Section 4.7 to be provided to the Trustee and each Paying Agent shall be deemed to include mention of the payment of Additional Amounts be duly provided if sent by facsimile to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofTrustee and each Paying Agent.
Appears in 1 contract
Samples: Indenture
Payment of Additional Amounts. (a) All payments relating to obligations accruing on or prior to the Domestication and made by the Company under or with respect to a Note or by a Guarantor under or with respect to the Guarantees will a Guarantee shall be made free and clear of and without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, impostsimpost, assessments assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (hereinafter, "Taxes") imposed or levied by or on behalf of the government of Canada or any other jurisdiction in which the Company or any Guarantor is organized or is a resident for tax purposes or within or through which payment is made or any political subdivision or taxing authority or agency thereof or therein (any of the aforementioned being a "Taxing Jurisdiction (“Taxes”Jurisdiction"), unless the Company or such Guarantor is required to withhold or deduct any such Taxes by law or by the interpretation or administration thereof. In .
(b) If the event that Company or any Guarantor is so required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Guaranteesa Note or a Guarantee of such Guarantor, the Company or such Guarantor will with respect to any obligation accruing on or prior to the Domestication, as applicable, shall pay such additional amounts (“"Additional Amounts”") as may be necessary so that the net amount received by each holder the Holder of Securities such Note (including Additional Amounts) after such withholding or deduction will equal of such Taxes shall not be less than the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided provided, however, that no notwithstanding the foregoing, Additional Amounts will shall not be payable paid with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofto:
(a1) any Taxes that are imposed would not have been so imposed, deducted or withheld solely because such holder or a fiduciary, settler, beneficiary, or member but for the existence of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection between the Holder or beneficial owner of a Note (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, the Holder or beneficial owner of such Note, if the Holder or beneficial owner is an estate, nominee, trust, partnership or corporation) and the relevant Taxing Jurisdiction (other than the mere fact of ownership receipt of such Securities) with payment or the Taxing Jurisdiction imposing ownership or holding or the execution, delivery, registration or enforcement of such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereofNote);
(iii2) with respect subject to any withholding Taxes imposed by the United StatesSection 4.19(f), is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transferexcise, excise transfer or personal property tax or similar tax, assessment or governmental charge;
(3) any Taxes imposed payable otherwise than by deduction or withholding from payments under or with respect to such Note, including Taxes imposed on or measured by the Securities, except as otherwise provided hereinnet income or capital of the Holder by the jurisdiction under the laws of which it is organized or is resident or carries on business through a permanent establishment located therein or any political subdivision thereof;
(c4) any Taxes imposed solely that would not have been so imposed, deducted or withheld if the Holder or beneficial owner of the Note or beneficial owner of any payment on such Note had (a) made a declaration of residence or nonresidence, or any claim or filing for exemption, to which it is entitled or (b) complied with any certification, identification, information, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder or beneficial owner of such Note or any payment on such Note (provided that such declaration of residence or non-residence or other claim or filing for exemption or such compliance is required by the applicable law of the Taxing Jurisdiction as a result precondition to exemption from, or reduction in the rate of the presentation imposition, deduction or withholding of, such Taxes);
(5) any Taxes that would not have been so imposed, deducted or withheld if the beneficiary of such Securities (where presentation is required) the payment had presented the Note for payment on a date more than 30 within 15 days after the date on which such payment on such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later, later (except to the extent that the beneficiary or holder thereof Holder would have been entitled to the payment of Additional Amounts had the Securities Note been presented for payment on any date during the last day of such 3015-day period);
(d6) any Taxes imposed solely as a result of the failure of such holder payment under or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable Note to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company fiduciary or partnership or any Person other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of such beneficial interests of such Offered Securitypayment or Note, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the such fiduciary, a member of such a partnership or a the beneficial owner of such payment or member of the partnership, limited liability company or other fiscally transparent entity, Note would not have been entitled to the payment of an Additional Amount Amounts had the such beneficiary, settlor, member or beneficial owner or member received directly its beneficial or distributive share been the actual Holder of the payment. In addition, no Additional Amounts will be paid on account such Note; or
(7) any combination of any Taxes imposed or withheld pursuant to Sections 1471 items (1) through 1474 of the Code (or any amended or successor version that is substantively comparable6) and any current or future regulations promulgated thereunder or official interpretations thereofabove. The foregoing provisions shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor Person to the Company or a Guarantor.
(c) The Company or the applicable Guarantor will shall also (i) make such any applicable deduction or withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction authority in accordance with all applicable lawslaw. The Company or the applicable Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available shall furnish to the holders of the Offered SecuritiesTrustee, within 90 30 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing or, if such tax receipts are not reasonably available to the Company or such Guarantor, such other documentation that provides reasonable evidence of such payment by the Guarantor Company or if, notwithstanding such Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence . Copies of such payments by Guarantor. At least 30 days prior receipts or other documentation shall be made available to the Holders or the Paying Agent, as applicable, upon request.
(d) Prior to each date on which any payment under or with respect to the Guarantees any Notes is due and payable, unless such obligation to pay Additional Amounts arises after such date, in which case it shall be promptly delivered thereafter, if the Company or any Guarantor will shall be obligated to pay Additional Amounts with respect to such payment, the Company or such Guarantor will shall deliver to the Trustee and the Paying Agent an Officer’s Officers' Certificate stating the fact that such Additional Amounts will shall be payable, payable and the amounts so payable and will shall set forth such other information as is necessary to enable such the Trustee and Paying Agent to pay such Additional Amounts to holders Holders of Offered Securities such Notes on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor Each Officers' Certificate shall be substituted for the date on which the Offered Securities was issued. relied upon until receipt of a further Officers' Certificate addressing such matters.
(e) Whenever in this Indenture, Indenture or in the Securities or the Guarantees Notes there is mentioneda reference, in any context, to the payment of principal and principal, premium, if any, redemption price, interest or of any other amount payable under or with respect to any SecurityNote, such mention reference shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The Company and the Guarantors shall pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in any jurisdiction prior to the Domestication from the execution, delivery, enforcement or registration of the Notes, this Indenture or any other document or instrument in relation thereto, excluding all such taxes, charges or similar levies imposed by any jurisdiction outside any jurisdiction in which the Company or any Guarantor or any successor Person is organized or resident for tax purposes or any jurisdiction in which a Paying Agent is located, and the Company and the Guarantors shall agree to indemnity the Holders of the Notes for any such non-excluded taxes paid by such Holders.
Appears in 1 contract
Payment of Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor under or with respect to the Guarantees Securities or any Guarantee, as applicable, will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxestax, dutiesduty, levieslevy, impostsimpost, assessments assessment or other similar governmental charges of whatever nature charge, including any interest, additions to tax, or penalties applicable thereto (collectively, “Taxes”) unless such withholding or deduction is required by law. In the event that any such withholding or deduction for, or on account of, any Taxes is imposed or levied by or on behalf of:
(i) Bermuda or any other jurisdiction in which the Company or any Guarantor is incorporated or organized, has its place of central management or central control or is otherwise engaged in business or resident for tax purposes or any political subdivision or taxing authority thereof (other than the United States or any political subdivision or taxing authority thereof); or
(ii) any jurisdiction from or through which payment is made by or on behalf of the Company or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision or taxing authority thereof (other than the United States or any political subdivision or taxing authority thereof); (each of clauses (i) and (ii), a “Relevant Taxing Jurisdiction (“TaxesJurisdiction”), unless the Guarantor is required to withhold Company or deduct Taxes by law or by the interpretation or administration thereof. In relevant Guarantor, as the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Guaranteescase may be, the Guarantor will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder Holder (or beneficial owner) of Securities after withholding or deduction (including Additional Amounts) after any such withholding or deduction will equal from Additional Amounts) is not less than the amount that such the Holder (or beneficial owner) would have received if such the Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment made to a holder of Holder to the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofextent:
(a1) that any Taxes that are would not have been so imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member but for the existence of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection between the Holder (or beneficial owner of the Securities) and the Relevant Taxing Jurisdiction, other than any connection arising solely from the mere fact receipt of the payment, acquisition, ownership or disposition of such Securities or the exercise or enforcement of rights under the Securities) with , the Taxing Jurisdiction imposing such Taxes, including being Guarantees or having been a citizen or resident thereof or being treated as being or having been a resident thereofthis Indenture;
(iii2) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise transfer or personal property Taxes imposed with respect to the SecuritiesSecurities or any other Taxes payable other than by withholding or deduction, except as described below or as otherwise provided hereinin this Indenture;
(c3) that any such Taxes would not have been imposed solely as a result of but for the presentation of such Securities (the Securities, where presentation is required) , for payment on a date more than 30 days after the date on which such the payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder Holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d4) any Taxes imposed solely as a result of that the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder beneficial owner of a beneficial interest in an Offered Security if such payment Securities would not be liable or subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residenceexemption, if the Company were treated as a domestic corporation under United States federal income tax and if if: (xa) the making of such the declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Relevant Taxing Authority Jurisdiction as a precondition to an exemption from, or reduction in, the relevant Taxes, and ; (yb) at least 90 60 days prior to the first payment date with respect to which the Company or such Guarantor shall apply this paragraphclause (iv), the Company or such Guarantor shall have notified all Holders of Offered Securities in writing that they or any beneficial owners of the Securities shall be required to provide this declaration or claim; and (c) the Holder or beneficial owner of Securities is legally eligible to provide such declaration or claim. Additional Amounts also will not be payable ;
(5) of any Taxes imposed under Sections 1471 through 1474 of the Code, any successor law or regulation implementing or complying with, or introduced in order to conform to, such Sections, any agreement entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any Holder such intergovernmental agreement;
(6) of any Taxes imposed on overall net income or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent any branch profits Taxes;
(7) that a beneficiary or settlor with respect to the a fiduciary, a member of a partnership or a the beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, payment would not have been entitled to the payment of an Additional Amount Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of a Security in the case of a Holder that is a fiduciary or member received directly its partnership or a person other than the sole beneficial or distributive share owner of any such payment; or
(8) of any combination of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed and/or withholdings or withheld pursuant to Sections 1471 deductions described in the foregoing clauses (1) through 1474 of the Code (or any amended or successor version that is substantively comparable7).
(b) The Company and any current or future regulations promulgated thereunder or official interpretations thereof. The such Guarantor will shall also (i) make withhold or deduct such withholding or deduction of Taxes and as required; (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction taxing authority in accordance with all applicable laws. The Guarantor will ; (iii) use its commercially reasonable efforts to obtain from each relevant taxing authority imposing the Taxes certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, withheld; and (iv) upon request, make available to the holders Holders of the Offered Securities, within 90 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax Tax receipts evidencing such payment by the Company or such Guarantor or ifand, notwithstanding the Company’s or such Guarantor’s efforts to obtain such the receipts, if the same are not obtainable, other evidence of such payments by Guarantorpayments. Each Holder and beneficial owner of the Securities agrees that it shall, upon the request of an applicable withholding agent, provide an applicable IRS Form W-8 or W-9 to the applicable withholding agent.
(c) In addition, the Company or any Guarantor will pay any stamp, issue, registration, documentary or other similar Taxes payable in any Relevant Taxing Jurisdiction or the United States with respect to the creation, issue, offering, enforcement, redemption or retirement of the Securities or Guarantees.
(d) At least 30 days prior to each date on which any payment under or with respect to the Guarantees Securities is due and payable, if the Company or any Guarantor will be becomes obligated to pay Additional Amounts with respect to such payment, the Guarantor will Company (or in respect of the Guarantees, such Guarantor) shall deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, and the amounts so payable and will set forth such other information as is necessary to enable such the Trustee or the Paying Agent to pay such Additional Amounts to holders of Offered Securities the Holders on the payment date. The provisions of this Article II shall survive any termination of the discharge of .
(e) All references in this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal of and premium, if any, redemption priceAdditional Amounts, if any, or interest (including defaulted interest), if any, or any other amount payable under on or with respect to any Security, such mention of the Securities shall be deemed to include mention of the payment of Additional Amounts provided for in this Section 3.08 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to the provisions of this Section 3.08, and express mention of the payment of Additional Amounts in those provisions in this Indenture shall not be construed as excluding Additional Amounts where such express mention is not made (if applicable).
(f) The obligations of the Company and any Guarantor under this Section 3.08 shall survive the termination of this Indenture and the payment of all amounts under or with respect to this Indenture and the Securities, and any transfer by a Holder or beneficial owner of its Securities.
Appears in 1 contract
Samples: Indenture (Nabors Industries LTD)
Payment of Additional Amounts. (a) All payments made by the Guarantor Company under or with respect to the Guarantees Notes (or by a Guarantor (if any) under or with respect to any Guarantee) will be made free and clear of of, and without withholding or deduction for or on account of, any Tax, unless the withholding or deduction of such Tax is then required by law. If any deduction or withholding by any applicable withholding agent for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature Taxes imposed or levied by or on behalf of the United States or a taxing authority of or in the United States (a “Tax Jurisdiction”) will at any Taxing Jurisdiction (“Taxes”), unless the Guarantor is time be required to withhold or deduct Taxes by law or be made in respect of any payments made by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made Company under or with respect to the GuaranteesNotes or any Guarantor under or with respect to its Guarantee, including payments of principal, redemption price, purchase price, interest or premium, then the Guarantor Company or the relevant Guarantor, as applicable, will pay such additional amounts (the “Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by each holder beneficial owner of Securities the Notes that is not a U.S. Person (as defined below) after such withholding, deduction or imposition (including any such withholding, deduction or imposition in respect of any such Additional Amounts) after will equal the respective amounts that would have been received in respect of such payments in the absence of such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducteddeduction; provided provided, however, that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofto:
(a1) any Taxes, to the extent such Taxes that are would not have been imposed but for the Holder of a Note (or withheld solely because the beneficial owner for whose benefit such holder Holder holds such Note) or a fiduciary, settlersettlor, beneficiary, member or member shareholder of such holder the Holder if such holder the Holder is an estate, trust, partnership, limited liability company partnership or other fiscally transparent entitycorporation, or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
(ia) is or was present or engaged in, or is or was treated as present or engaged in, having a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present current or former connection with the relevant Tax Jurisdiction (other than a connection arising solely from the mere fact of ownership or disposition of such Securities) with Note, the Taxing Jurisdiction imposing enforcement of rights under such TaxesNote or under any future Guarantee or the receipt of any payments in respect of such Note or Guarantee), including being or having been a citizen or resident thereof of such Tax Jurisdiction, being or being treated as having engaged in a trade or business in such Tax Jurisdiction or having or having had a permanent establishment in such Tax Jurisdiction; or
(b) being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, company or a controlled foreign corporation, corporation for U.S. federal income tax purposes or a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States U.S. federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b2) any estateHolder that is not the sole beneficial owner of the Notes, inheritanceor a portion of the Notes, giftor that is a fiduciary, salespartnership or limited liability company, transfer, excise or personal property Taxes imposed but only to the extent that a beneficial owner with respect to the Securitiesholder, except as otherwise provided herein;
(c) any Taxes imposed solely as a result beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable partnership or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof limited liability company would not have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day periodbeneficial owner, beneficiary, settlor or member received directly its beneficial or distributive share of the payment;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g3) any Taxes required to be withheld by any paying agent from any payment in respect of principal of or interest on any Securities note, if such payment can be made without such withholding by at least one other paying agent;
(h4) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder or beneficial owner would otherwise have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(5) any Taxes required to be deducted that are payable otherwise than by deduction or withheld pursuant withholding from a payment on or with respect to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, Notes or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amendedGuarantee;
(i6) any U.S. federal withholding or deduction for Taxes which would not have been tax imposed if the relevant Securities had been presented to another paying agent in as a Member State result of the European Unionbeneficial owner:
(a) being a controlled foreign corporation for U.S. federal income tax purposes related to the Company or the applicable Guarantor;
(b) being or having been a “10-percent shareholder” of the Company as defined in Section 871(h)(3) of the Code; or
(jc) being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business;
(7) any combination estate, inheritance, gift, sales, transfer, excise, wealth, capital gains, personal property or similar Taxes;
(8) any Taxes, to the extent such Taxes are imposed or withheld by reason of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a the Holder or the holder beneficial owner of a beneficial interest in an Offered Security Notes to make a valid declaration of non-residence comply with any certification, identification, information or other similar claim for exemption or to provide a certificate declaring its non-residencereporting requirements, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is whether required or imposed by statute, treaty, regulation, ruling regulation or administrative practice of the relevant Taxing Authority a Tax Jurisdiction, as a precondition to an exemption from, or reduction inin the rate of deduction or withholding of, Taxes imposed by the relevant TaxesTax Jurisdiction (including, and (y) at least 90 days prior to without limitation, a certification that the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that owner is not resident in the sole Holder or holder of such beneficial interests of such Offered SecurityTax Jurisdiction), as the case may be. This exceptionbut in each case, however, will apply only to the extent that a beneficiary the Holder or settlor with respect to the fiduciary, or a beneficial owner is legally eligible to provide such certification or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of documentation;
(9) any Taxes that are imposed or withheld pursuant to Sections 1471 through 1474 of the Code as of the date of the Indenture (or any amended or successor version that is substantively comparable) and ), any current or future regulations promulgated thereunder or any other official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code as of the date of Indenture (or any amended or successor version described above) or any intergovernmental agreements (and any related law, regulation or official administrative guidance) implementing the foregoing; or
(10) any combination of items (1) through (9) above.
(b) Except as specifically provided for in this Section 4.15, the Company will not be required to make any payment for any Tax.
(c) If the Company or any Guarantor as the case may be, becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or any such Guarantee, each of the Company or relevant Guarantor as the case may be, will deliver to the Trustee and Paying Agent promptly prior to the date of that payment an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Guarantor Officers’ Certificate must also set forth any other information reasonably necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date. The Trustee and Paying Agent shall be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary.
(d) The Company or any relevant Guarantor, if it is the applicable withholding agent, will also (i) make such withholding or deduction of Taxes all withholdings and (ii) deductions required by law and will remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction Tax authority in accordance with all applicable lawslaw. The Company or the relevant Guarantor will use its commercially reasonable efforts to obtain certified copies of tax Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxeswithheld. The Company or the relevant Guarantor will, will furnish to the Trustee upon reasonable written request, make available to the holders of the Offered Securities, within 90 days a reasonable time after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable lawmade, certified copies of tax Tax receipts evidencing such payment by the Guarantor Company or such Guarantor, as the case may be, or if, notwithstanding Guarantorsuch entity’s efforts to obtain such receipts, the same receipts are not obtainableobtained, other reasonable evidence of such payments by Guarantor. At least 30 days prior such entity.
(e) The above obligations will survive any termination, defeasance or discharge of the Indenture, any transfer by a holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to each date on which any payment under or with respect successor Person to the Guarantees is due and payableCompany or a Guarantor, if the Guarantor will be obligated to pay Additional Amounts with respect to such paymentany, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes Company or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever Guarantor.
(f) As used in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal Section 4.15 and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.Section 3.03 hereof,
Appears in 1 contract
Payment of Additional Amounts. (a) All payments made by the Guarantor under Company under, or with respect to to, the Guarantees will Notes shall be made free and clear of of, and without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, impostsimpost, assessments assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of any taxing authority in or of the United States, Mexico, any jurisdiction in which the Company is, or any successor of the Company is, organized (wherein any successor assumes the obligations of the Notes and this Indenture following a consolidation or merger or a transfer, conveyance, sale, lease or disposition of all or substantially all of the Company’s assets and properties), or any other jurisdiction through which payments on the Notes are made (a “Taxing Jurisdiction (“TaxesJurisdiction”), unless the Guarantor Company is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof. In .
(b) If the event that Guarantor Company is so required to so withhold or deduct any amount for for, or on account of any of, such Taxes from any payment made under or with respect to the GuaranteesNotes, the Guarantor will Company shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Securities Holder (including Additional Amounts) after such withholding or deduction will equal shall not be less than the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided provided, however, that no the foregoing obligation to pay Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account ofdoes not apply to:
(a1) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered by a fiduciary holder:
(i) at any time there is or was present a connection between the Holder or engaged inbeneficial owner of the Notes, or is or was treated as present or engaged inthe case may be, and a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including such Holder or beneficial owner being or having been a citizen or resident of such Taxing Jurisdiction or treated as a resident thereof or being treated as being or having been physically present or engaged in a resident thereoftrade or business or having had a permanent establishment therein (other than the mere purchase of the Notes, or receipt of a payment or the ownership or holding of the Notes);
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b2) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes or similar Tax imposed with respect to the Securities, except as otherwise provided hereinNotes;
(c3) any Taxes imposed solely because the Holder or any other person fails to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with a Taxing Jurisdiction of the Holder or any beneficial owner of the Note, if compliance is required by the applicable law, regulation or by an applicable income tax treaty of the Taxing Jurisdiction as a result of precondition to exemption from, or reduction in the presentation of rate of, the tax, assessment or other governmental charge, and the Company has given the Holders at least thirty (30) days’ notice that Holders shall be required to provide such Securities information and identification;
(4) any Taxes payable otherwise than by deduction or withholding from payments on the Notes;
(5) any Taxes that would have been avoided by presenting for payment (where presentation is required) the relevant Note to another Paying Agent;
(6) any Taxes with respect to such Note presented for payment on a date more than 30 thirty (30) days after the date on which such the payment became due and payable or the date on which payment thereof is duly provided forfor and notice thereof given to Holders, whichever is occurs later, except to the extent that the beneficiary or holder thereof Holders of such Note would have been entitled to the payment of such Additional Amounts had the Securities been presented on presenting such Note for payment on any date during such 30-day period;
(d7) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order Note to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company fiduciary or partnership or a person other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of any such beneficial interests of such Offered Securitypayment, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the such fiduciary, a member of such a partnership or a the beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, payment would not have been entitled to the payment of an Additional Amount Amounts had the beneficiary, settlor, member or beneficial owner or member received directly its beneficial or distributive share been the Holder of the payment. In addition, no Additional Amounts will be paid Note;
(8) any Taxes withheld or deducted on account or in respect of any Taxes imposed or withheld Note pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), as amended (commonly referred to “FATCA”), any treaty, law, regulation or other official guidance enacted by the United States implementing FATCA, any agreement between the Company and the United States implementing FATCA pursuant to Section 1471(b)(1) of the Code, as amended, or any amended or successor version that is substantively comparablelaw of any jurisdiction implementing an intergovernmental approach to FATCA; or
(9) any combination of the foregoing.
(c) The obligations in Section 4.04(a) and Section 4.04(b) shall survive any current termination or future regulations promulgated thereunder or official interpretations thereofdischarge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor to the Company. The Guarantor will also Company shall (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable lawslaw. The Guarantor will Company shall use its commercially all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority Jurisdiction imposing such Taxes. The Guarantor will, upon request, make available Taxes and shall furnish such certified copies to the holders of the Offered Securities, Trustee within 90 thirty (30) days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable lawlaw or, certified copies of if such tax receipts evidencing are not reasonably available to the Company, furnish such other documentation that provides reasonable evidence of such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect Company.
(d) The exception to the Guarantees is due and payable, if the Guarantor will be obligated Company’s obligations to pay Additional Amounts with respect pursuant to clause (iii) of Section 4.04(b) will not apply if (i) the provision of information, documentation or other evidence described in such paymentclause would be materially more onerous, in form, in procedure or in the Guarantor will deliver substance of information disclosed, to a Holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulation (including proposed regulations) and administrative practice, or (ii) Article 166, Section II, paragraph a), of the Trustee an Officer’s Certificate stating Mexican Income Tax Law (Ley del Impuesto Sobre la Renta) (or a substitute or equivalent provision) is in effect, unless (A) the fact that such Additional Amounts will be payableprovision of the information, documentation or other evidence described in clause (iii) of Section 4.04(b) is expressly required by the amounts so payable applicable Mexican laws and will set forth such regulations in order to apply Article 166, Section II, paragraph a), of the Mexican Income Tax Law (or substitute or equivalent provision), (B) the Company cannot obtain the information, documentation or other information as is evidence necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities comply with the applicable Mexican laws and regulations on its own through reasonable diligence and (C) the payment date. The provisions of this Article II shall survive any termination Company would not otherwise meet the requirements for application of the discharge applicable Mexican laws and regulations.
(e) Clause (iii) of this Indenture Section 4.04(b) does not require, and shall apply mutatis mutandis not be construed to require, that any jurisdiction in which Holder, including any non-Mexican pension fund, retirement fund, tax-exempt organization or financial institution, register with the Guarantor Mexican Tax Management Service (Servicio de Administración Tributaria) or any successor Person the Mexican Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) to the Guarantor is organized establish eligibility for an exemption from, or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provideda reduction of, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever Mexican withholding taxes.
(f) Any reference in this Indenture, the Securities any supplemental indenture or the Guarantees there is mentionedNotes to principal, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with in respect to any Security, such mention of the Notes by the Company shall be deemed to include mention all Additional Amounts, if any that may be payable with respect to that amount under the obligations referred to in this subsection. Payment of any Additional Amounts with respect to interest shall be considered as an interest payment under, or with respect to, the Notes.
(g) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 4.04 are based on rates of deduction or withholding of withholding taxes in excess of the payment appropriate rate applicable to the Holder of Additional Amounts such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, and without any further action, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to the Company. However, by making such assignment, the Holder makes no representation or warranty that the Company shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
(h) Notwithstanding anything to the contrary contained in this Indenture, the Company may, to the extent thatit is required to do so by law, in such context, Additional Amounts are, were deduct or would be payable in respect thereofwithhold income or other similar taxes imposed by the United States of America from principal or interest payments.
Appears in 1 contract
Samples: Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. All payments made by the Guarantor under or (a) The Company shall pay any amounts due with respect to payments on the Guarantees will be made free Securities without deduction or withholding for any and clear of all present and without future withholding or deduction for or on account of any present or future taxes, duties, levies, impostsimposts and charges (each, assessments or governmental charges of whatever nature a “Withholding Tax”) imposed or levied by or on behalf for the account of the Cayman Islands or any other jurisdiction in which the Company is resident for tax purposes or any political subdivision or taxing authority of such jurisdiction (the “Taxing Jurisdiction (“TaxesJurisdiction”), unless the Guarantor such withholding or deduction is required to withhold by law. If such deduction or deduct Taxes by law or by the interpretation or administration thereof. In the event that Guarantor withholding is required to so withhold or deduct at any amount for or on account of any Taxes from any payment made under or with respect to the Guaranteestime required, the Guarantor Company will pay each Holder (subject to compliance by such Holder with any relevant administrative requirements) additional amounts (“Additional Amounts”) as may be necessary so that the net amount will result in such Holder’s receipt of such amounts as it would have received by each holder of Securities (including Additional Amounts) after had no such withholding or deduction will equal been required.
(b) If the amount that Taxing Jurisdiction requires the Company to deduct or withhold any Withholding Tax, the Company shall (subject to compliance by the Holder with any relevant administrative requirements) pay such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with in respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests principal amount, redemption price and interest (if any) in accordance with the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership terms of the Offered Securities or for or on account ofand this Indenture; provided, however, that the foregoing shall not apply to:
(a1) any Taxes Withholding Tax that are imposed would not be payable or withheld solely because such holder due but for the fact that (1) the Holder of a Security (or a fiduciary, settlersettlor, beneficiarybeneficiary of, member or member of shareholder of, such holder Holder, if such holder Holder is an estate, trust, partnershippartnership or corporation) is a domiciliary, limited liability company national or other fiscally transparent entityresident of, or engaging in business or maintaining a person holding a power over an estate permanent establishment or trust administered by a fiduciary holder:
(i) is fixed base or was being physically present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction;
(ii) has or had any otherwise having some present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing other than the holding or ownership of the Security or the collection of the principal amount, redemption price and interest (if any), in accordance with the terms of the Security and this Indenture, or the enforcement of the Security or (2) where presentation is required, the Security was presented more than 30 days after the date such Taxespayment became due or was provided for, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereofwhichever is later;
(iii2) with respect any Withholding Tax attributable to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or excise, personal property Taxes imposed with respect to the Securitiesor similar tax, except as otherwise provided hereinlevy, impost or charge;
(c3) any Taxes imposed solely as a result Withholding Tax attributable to any tax, levy, impost or charge that is payable otherwise than by withholding from payment of the presentation of such Securities principal amount, redemption price and interest (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day periodif any);
(d4) any Taxes Withholding Tax that would not have been imposed solely as a result of but for the failure of such holder or any other person to comply with applicable certification, identification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection connections with the Taxing Jurisdiction relevant tax authority of such holderthe Holder or beneficial owner of a Security, if such (A) this compliance is required by statute or by regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such TaxesWithholding Tax and (B) at least 30 days prior to the first scheduled payment date for which compliance will be required, the Parent Guarantor has notified Holders or beneficial owners of Securities that they must comply with such certification, identification, information, documentation or other reporting requirements;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f5) any Taxes that are payable by any method other than withholding Withholding Tax to the extent a Holder of a Security is entitled to a refund or deduction by credit in the Guarantor or the Company or any paying agent from payments in respect Taxing Jurisdiction of such Securities;
(g) any Taxes amounts required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amended;
(i) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another paying agent in a Member State of the European UnionTaxing Jurisdiction; or
(j6) any combination of Section 3.02(athe instances described in (1) through (5), (b), .
(c)) With respect to Section 12.01(b)(5) above, (d)in the absence of evidence satisfactory to the Company, (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of Company may conclusively presume that a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as Security is entitled to a precondition refund or credit of all amounts required to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor be withheld. The Company shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall not be required to provide such declaration or claim. pay any Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that who is a fiduciary, partnership, limited liability company fiduciary or partnership or other fiscally transparent entity, or to such holder that is not than the sole Holder or holder beneficial owner of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only Security to the extent that a beneficiary or settlor with respect to the such fiduciary, or a member of such partnership or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entitythereof, would not have been entitled to the payment of an such Additional Amount Amounts had the such beneficiary, settlor, member or beneficial owner or member received directly its beneficial or distributive share been the Holder of the payment. In additionSecurity.
(d) Each Guarantor shall, no with respect to its Securities Guarantee, pay Additional Amounts will be paid on Amounts, subject to the above requirements and limitations, with respect to any Withholding Tax imposed by or for the account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereof. The Guarantor will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will(which, upon requestfor this purpose, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Guarantees is due and payable, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to includes any jurisdiction in which the Guarantor or any successor Person to the such Guarantor is organized or is engaged in business resident for tax purposes or any political subdivisions subdivision or taxing authority thereof) with respect to any payments made under the Securities Guarantee.
(e) The Company or agency thereof or therein; providedthe relevant Guarantor, howeveras the case may be, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor shall furnish to the Guarantor shall Trustee documentation reasonably satisfactory to the Trustee evidencing the payment of any Withholding Taxes with respect to payments on the Securities. Copies of such receipts will be substituted for made available to the date on which Holders of the Offered Securities was issuedor beneficial owners of the Securities upon written request. Whenever The Trustee will have no duty to determine whether any Additional Amounts are payable or the amount thereof.
(f) All references in this Indenture, Indenture or the Securities to “interest” or other amounts payable with respect to the Securities or the Securities Guarantees there is mentioned, in shall include (without duplication) any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or Additional Amounts due with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereto.
Appears in 1 contract
Samples: Indenture (Noble Corp)
Payment of Additional Amounts. If specified pursuant to Section 3.1, the provisions of this Section 10.10 shall be applicable to Securities of any series and any related Guarantees. All payments made by the Company, the Parent Guarantor under or their Paying Agents (each referred to in this section as a “Payor”) with respect to the Guarantees any Security or related Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future taxestax, duties, levies, imposts, assessments assessment or other governmental charges of whatever nature imposed or levied by or on behalf of charge and any Taxing Jurisdiction applicable interest and penalties (collectively “Taxes”), unless the Guarantor withholding or deduction of such amounts is required to withhold or deduct Taxes by law or the official interpretation thereof. The Company or the Parent Guarantor, as the case may be, will, subject to the exceptions and limitations set forth below, pay such additional amounts as may be necessary to ensure that every net payment on such Security or related Guarantee, after deduction or withholding by the interpretation or administration thereof. In the event that Guarantor is required to so withhold or deduct any amount applicable withholding agent, for or on account of any Taxes present or future Tax imposed upon or as a result of such payment by any jurisdiction in which the Company or the Parent Guarantor is incorporated or organized, resident or engaged in business for tax purposes, or from or through which payment is made by or on behalf of the Company or the Parent Guarantor, or, in each case, any payment made under political subdivision thereof or with respect therein (each a “Relevant Taxing Jurisdiction”), including any such deduction or withholding attributable to the Guarantees, the Guarantor will pay payment of such additional amounts amounts, will not be less than the amount provided in such Security to be then due and payable absent such deduction or withholding (such additional amounts, “Additional Amounts”) as may be necessary so that ). However, the net Company and the Parent Guarantor will not pay Additional Amounts (including, for the avoidance of doubt, any such amount received by each holder in respect of Securities (including the payment of Additional Amounts) after such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of the Offered Securities or a holder of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes Tax that are is imposed or withheld solely because by reason of the existence of any present or former connection (other than a connection arising solely from the ownership of such holder Securities, the receipt of payments in respect of such Securities or related Guarantees, or the enforcement of any rights with respect to such Securities or related Guarantees) between such Holder or beneficial owner (or between a fiduciary, settlersettlor, beneficiarybeneficiary member, partner or member shareholder of such holder Holder or beneficial owner if such holder Holder is an estate, trust, partnership, limited liability company or company, other fiscally transparent entityentity or corporation, or a person holding a power over an estate or trust administered by a fiduciary holder:
(iholder or beneficial owner) is of a Security and the applicable Relevant Taxing Jurisdiction, including without limitation, citizenship, nationality, residence, domicile or was the existence of a business, permanent establishment, a dependent agent or a place of management present or engaged in, or is or was treated as deemed present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the applicable Relevant Taxing Jurisdiction;
(ii) has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a citizen or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor;
(b) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes Tax which would not have been imposed with respect to the Securities, except as otherwise provided herein;
(c) any Taxes imposed solely as a result of but for the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(c) any Tax that is laterpayable by any method other than withholding or deduction in respect of payments under, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during in respect of, such 30-day periodSecurity or related Guarantees;
(d) any Taxes gift, estate, inheritance, sales, transfer, personal property or any similar Tax;
(e) any Tax if the Holder could have avoided such Tax by presenting such Securities for payment to another Paying Agent;
(f) any Tax imposed solely or withheld as a result of the failure of such holder the Holder or any other person beneficial owner of a Security to comply with a request to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with any jurisdiction of the Taxing Jurisdiction Holder or beneficial owner of such holdera Security, or to satisfy any information or reporting requirement, if such compliance is required by statute or by regulation of the relevant Relevant Taxing Jurisdiction or by an applicable income tax treaty to which the Relevant Taxing Jurisdiction is a party, as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed Tax by the United StatesRelevant Taxing Jurisdiction; provided, any such Taxes imposed by reason of in each case, that the failure Holder or beneficial owner of such holder Security is legally eligible to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of satisfy such Securitiesrequirement;
(g) any Taxes Tax imposed on or withheld from a payment to a Holder or beneficial owner of a Security and that is required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any Taxes required to be deducted or withheld pursuant to the European Council Directive 2003/48/EC of June 3, 2003 on the taxation of savings income in which was adopted by the form of interest paymentsECOFIN Council on June 3, or any amendment thereof, 2003 or any law or agreement implementing or complying with, or introduced in order to conform to, such directive; or
(h) any Tax imposed on or with respect to any payment to a Holder if such Holder is a fiduciary, limited liability company, partnership, other fiscally transparent entity or other person other than the sole beneficial owner of a Security to the extent that Directive such Tax would not have been imposed on such payment had the beneficiary, settlor, partner, member or the Luxembourg Law of December 23, 2005, as amendedother beneficial owner directly held such Security;
(i) any withholding or deduction for Taxes which would not have been Tax imposed if the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(j) any combination of Section 3.02(a), (b), (c), (d), (e), (f), (g), (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in an Offered Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Offered Security, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections sections 1471 through 1474 of the Code as of the issue date (or any amended or successor provision that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to current section 1471(b) of the Code (or any amended or successor version described above) or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement (or related laws or official administrative practices) implementing the foregoing;
(j) any U.S. federal Tax on a beneficial owner that actually or constructively owns 10% or more of the total combined voting power of all of the Company’s or the Parent Guarantor’s stock that is substantively comparableentitled to vote within the meaning of Section 871(h)(3) of the Code;
(k) any U.S. federal backup withholding Tax imposed pursuant to Section 3406 of the Code; or
(l) any combination of items (a) through (k) above. The Company will pay any stamp, issue, registration, court or documentary Taxes or any other excise or similar Taxes that are levied by any Relevant Taxing Jurisdiction and required by such Relevant Taxing Jurisdiction to be paid on the execution, delivery, issuance or registration of any current Securities, this Indenture, any Guarantee of such Securities or future regulations promulgated thereunder any other document referred to therein, the receipt of any payments with respect thereto (but excluding, solely in the case of such payments, any Taxes described in clause (a), (b), or official interpretations (d) through (k) or any combination of the foregoing), or enforcement of, any Securities or any Guarantee thereof. The Company will not, however, be obligated to pay any stamp, issue, registration, court or documentary Taxes, or any other excise or similar Tax, that is levied by any Relevant Taxing Jurisdiction in connection with any transfer of a Security or a beneficial interest in a Security to a person other than the Company or the Parent Guarantor after the date of issuance of such Security. Except as specifically provided above, the Company will not be required to make any payments for any Tax with respect to the payment on the Securities. If a Payor is the applicable withholding agent, each of the Company and the Parent Guarantor will also (i) make such withholding all withholdings and deductions for Taxes with respect to payments under the Securities and the Guarantees thereof (if any) that it is required by law or deduction of Taxes the official interpretation thereof to make, and (ii) will remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction tax authority in accordance with all applicable laws. The Guarantor will law (ii) use its commercially reasonable efforts to obtain certified copies of tax receipts from each tax authority evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available and (iii) furnish to the holders of the Offered Securitiestrustee, within 90 days a reasonable time after the date of the payment of any Taxes so deducted or withheld is due pursuant to applicable lawsuch Taxes, certified copies of tax such Tax receipts evidencing any such payment by the Guarantor payment, or if, notwithstanding Guarantor’s its efforts to obtain such receipts, the same receipts are not obtainableavailable, other evidence of such payments payments. The above obligations will survive any termination, defeasance or discharge of the indenture and any transfer by Guarantor. At least 30 days prior to each date on which any payment under a Holder or with respect to the Guarantees is due and payablebeneficial owner of its Notes, if the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Offered Securities on the payment date. The provisions of this Article II shall survive any termination of the discharge of this Indenture and shall apply apply, mutatis mutandis mutandis, to any jurisdiction in which the Guarantor or any successor Person to the Guarantor Company or Parent is organized incorporated or is organized, resident or engaged in business for tax Tax purposes or any jurisdiction from or through which any payment on the Notes (or related Guarantee) is made by or on behalf of such Person and, in each case, any political subdivisions or taxing authority or agency subdivision thereof or therein; provided, however, the date on which the Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Guarantor shall be substituted for the date on which the Offered Securities was issued. Whenever in this Indenture, the Securities or the Guarantees Indenture there is mentioned, in any context, the payment of principal of, and premium, if any, redemption priceand interest, interest or if any, on any other amount payable under or with respect to Security of any Securityseries, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in the terms of such Securities and this Section 10.10 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to the provisions of this Section and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made. If the Securities of a series provide for the payment of Additional Amounts as contemplated by Section 3.1(20), at least 10 days prior to the date of the first payment of principal, premium, if any, or interest, with respect to which Additional Amounts are payable, the Company will furnish the Trustee for that series of Securities and the Company’s principal Paying Agent or Paying Agents, if other than such Trustee, with an Officers’ Certificate instructing such Trustee and such Paying Agent or Paying Agents of the amount, if any, required to be withheld on such payments to such Holders of Securities and the Additional Amounts that are required to be paid pursuant to the terms applicable to such series. The Company covenants to indemnify the Trustee for such series of Securities, and to hold it harmless against, any loss, liability or expense reasonably incurred without gross negligence or willful misconduct on its part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section 10.10. For the avoidance of doubt, the Trustee shall not at any time be under any duty or responsibility to any Holder to determine the Additional Amounts, or with respect to the nature, extent, or calculation of the amount of any Additional Amounts owed, or with respect to the method employed in such calculation of any Additional Amounts.
Appears in 1 contract
Payment of Additional Amounts. All payments made by that the Company, any Subsidiary Guarantor or any Successor makes under or with respect to the Guarantees Securities, or that any Subsidiary Guarantor makes with respect to any Guarantee, will be made free and clear of of, and without withholding or deduction for or on account of of, any present or future taxestax, dutiesduty, levieslevy, impostsimpost, assessments assessment or other governmental charges (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company, or, if applicable, any Subsidiary Guarantor or any Successor, as the case may be, is incorporated, organized or otherwise resident for tax purposes or from or through which any of the foregoing makes any payment on the Securities or by any taxing authority therein or political subdivision thereof (each, as applicable, a “Relevant Taxing Jurisdiction (“TaxesJurisdiction”), unless the Company, such Subsidiary Guarantor or such Successor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereofof law. In If the event that Company, a Subsidiary Guarantor or such Successor is required to so withhold or deduct any amount for for, or on account of, Taxes of any Taxes a Relevant Taxing Jurisdiction from any payment made under or with respect to the GuaranteesSecurities or any Guarantee, the Company, such Subsidiary Guarantor or such Successor, as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary so to ensure that the net amount received by each holder Holder of the Securities (including Additional Amounts) after such withholding or deduction will equal be not less than the amount that such the Holder would have received if such Taxes had not been required to be withheld or deducted; provided that no . Notwithstanding the foregoing, neither the Company, any Subsidiary Guarantor nor any Successor will, however, be required to pay Additional Amounts will be payable with respect to a payment to a holder Holder or beneficial owner of the Offered Securities or a holder in respect of a beneficial interests in the Offered Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Offered Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder or a fiduciary, settler, beneficiary, or member of such holder if such holder is an estate, trust, partnership, limited liability company or other fiscally transparent entity, or a person holding a power over an estate or trust administered levied by a fiduciary holder:
(i) is Relevant Taxing Jurisdiction by reason of the Holder’s or was beneficial owner’s present or former connection with such Relevant Taxing Jurisdiction, including without limitation, the Holder or beneficial owner being or having been a citizen, national or resident, being or having been engaged in, or is or was treated as present or engaged in, in a trade or business business, being or having been, physically present in the Taxing Jurisdiction or has having or having had a permanent establishment in a Relevant Taxing Jurisdiction (but not including in each case, any connection arising from the Taxing Jurisdictionmere receipt or holding of Securities or the receipt of payments thereunder or under a Guarantee or the exercise of enforcement of rights under any Securities or the Indenture or a Guarantee);
(iib) has any Taxes that are imposed or had levied by reason of the failure of the Holder or beneficial owner of Securities, following the written request of the Company, any present Subsidiary Guarantor or former connection any Successor (other than as the mere fact of ownership of such Securitiescase may be) addressed to the Holder (and made at a time that could enable the Holder or beneficial owner acting reasonably to comply with that request) made in accordance with the notice procedures set forth in the Indenture, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction imposing such TaxesJurisdiction, including being as a precondition to exemption from or having been a citizen reduction in the rate of withholding or resident thereof or being treated as being or having been a resident thereof;
(iii) with respect to any withholding deduction of, Taxes imposed by the United States, is or was with respect to the United States a personal holding companyRelevant Taxing Jurisdiction (including without limitation, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization certification that the Holder or corporation that has accumulated earnings to avoid United States federal income tax; or
(iv) owns or owned 10% or more of beneficial owner is not resident in the total combined voting power of all classes of stock of the Company or the GuarantorRelevant Taxing Jurisdiction);
(bc) any estate, inheritance, gift, sales, transfer, excise or personal property Taxes imposed or similar Taxes;
(d) any Tax that is payable otherwise than by withholding or deduction from payments made under or with respect to the Securities, except as otherwise provided herein;
(ce) any Taxes Tax that is imposed solely as a result or levied by reason of the presentation of such Securities (where presentation is requiredrequired in order to receive payment) of such Securities for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary beneficial owner or holder Holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) any Taxes imposed solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute or regulation of the relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than withholding or deduction by the Guarantor or the Company or any paying agent from payments in respect of such Securities;
(g) any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without Taxes where such withholding by at least one other paying agent;
(h) any Taxes or deduction is imposed or levied on a payment to an individual and is required to be deducted or withheld made pursuant to the European Council Directive 2003/48/EC or any other Directive implementing the conclusions of June 3the ECOFIN Council meeting of November 26-27, 2003 2000 on the taxation of savings income in the form of interest payments, or any amendment thereof, or any law implementing or complying with, or introduced in order to conform to, that Directive or the Luxembourg Law of December 23, 2005, as amendedsuch Directive;
(ig) any Tax that is imposed or levied on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction for Taxes which would not have been imposed if by presenting the relevant Securities had been presented to another paying agent in a Member State of the European Union; or
(jh) any combination of Section 3.02(a), Items (b), (c), (d), (e), (f), a) through (g)) above. Furthermore, (h) and (i). Additional Amounts will not be payable to or for the account of any Holder or the holder of a beneficial interest in an Offered Security if such payment would not be subject to such withholding or deduction of Taxes but for the failure of a Holder or the holder of a beneficial interest in an Offered Security to make a valid declaration of non-residence or other similar claim for exemption or to provide a certificate declaring its non-residence, if the Company were treated as a domestic corporation under United States federal income tax and if (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 90 days prior to the first payment date paid with respect to which the Guarantor shall apply this paragraph, the Guarantor shall have notified all Holders of Offered Securities in writing that they shall be required to provide such declaration or claim. Additional Amounts also will not be payable to any a Holder or the holder of a beneficial interest in an Offered Security that who is a fiduciary, a partnership, a limited liability company or other fiscally transparent entity, or to such holder that is not than the sole Holder beneficial owner of the payment under or holder of such beneficial interests of such Offered Securitywith respect to the Securities, as the case may be. This exception, however, will apply only to the extent that payment would be required by the laws of a Relevant Taxing Jurisdiction to be included in the income, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership, an interest holder in that limited liability company or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, who would not have been entitled to the payment of an Additional Amount Amounts had it been the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share Holder of the payment. In addition, no Additional Amounts will be paid on account of any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable) and any current or future regulations promulgated thereunder or official interpretations thereofSecurities. The Company, the relevant Subsidiary Guarantor or the relevant Successor, as the case may be, will also (i) make such withholding or deduction of Taxes as is required by applicable law and (ii) remit the full amount of Taxes so withheld or deducted or withheld to the relevant Taxing Jurisdiction taxing authority in accordance with all applicable laws. The Guarantor will use its commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Guarantor will, upon request, make available to the holders of the Offered Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Guarantor or if, notwithstanding Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Guarantor. At least 30 calendar days prior to each date on which any payment under or with respect to the Guarantees Securities is due and payable, if the Company, any Subsidiary Guarantor or a Successor will be obligated to pay Additional Amounts with respect to such payment, the Company, the relevant Subsidiary Guarantor or the relevant Successor (as the case may be) will deliver to the Trustee an Officer’s Officers’ Certificate stating the fact that such Additional Amounts will be payable, payable and the amounts so payable and will set forth such other information as is necessary to enable such the Trustee to pay such Additional Amounts to holders of Offered Securities Holders on the payment date. The provisions of this Article II shall survive any termination of date (unless such obligation to pay Additional Amounts arises after the discharge of this Indenture and shall apply mutatis mutandis 30th day prior to any jurisdiction in which the Guarantor or any successor Person to the Guarantor is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which payment under or with respect to the Guarantor changes its jurisdiction Securities is due and payable, in which it is organized case such Officers’ Certificate shall be delivered promptly thereafter). The Company, the relevant Subsidiary Guarantor or the relevant Successor, as the case may be, will promptly publish a notice in accordance with the notice provisions set forth in the Indenture stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. Upon written request, the Company, the relevant Subsidiary Guarantor or the relevant Successor, as the case may be, will furnish to the Trustee or to a Holder of the Securities copies of tax receipts evidencing the payment of any Taxes by the Company, such Subsidiary Guarantor or such Person becomes a successor Successor in such form as provided in the normal course by the taxing authority imposing such Taxes and as is reasonably available to the Company, such Subsidiary Guarantor shall be substituted for or such Successor. If, notwithstanding the date on which efforts of the Offered Securities was issuedCompany, such Subsidiary Guarantor or such Successor to obtain such receipts, the same are not obtainable, the Company, such Subsidiary Guarantor or such Successor will provide the Trustee or such Holder with other evidence reasonably satisfactory to the Trustee or the Holder. Whenever In addition, the Company, any Subsidiary Guarantor and any Successor, as the case may be, will pay any present or future stamp, issue, registration, court, documentation, excise or property taxes or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by or in this Indentureany Relevant Taxing Jurisdiction in respect of the execution, issue, enforcement or delivery of the Securities or any other document or instrument referred to thereunder (other than on or in connection with a transfer of the Guarantees there is mentionedSecurities other than the initial resale by the underwriters named in the Prospectus). Whenever the Indenture or the Securities refers to, in any context, the payment of principal and principal, premium, if any, redemption price, interest or any other amount payable under or with respect to any SecuritySecurity or with respect to any Guarantee, such mention shall be deemed to include mention of reference includes the payment of Additional Amounts to the extent thatAmounts, in such context, Additional Amounts are, were or would be payable in respect thereofif applicable.
Appears in 1 contract
Samples: Indenture (Mayfield Processing LLC)
